A separate division is a part of a company that has limited functionality in civil law relations and (or) is located in a place that is geographically separated and equipped with at least one stationary workplace. Their differences and creation procedure will be discussed in this article.

Structural territorially separate division of an organization

As part of the organization's activities, part of its functionality can be transferred to structural units. At the same time, it is important to maintain a line between separating part of the company as a new legal entity and territorial and organizational relocation of the unit, which will remain an integral part of the company.

One of the differences between such actions is the information that is entered into the Unified State Register of Legal Entities (USRLE): the creation of a company in the process of reorganization is entered new entry, and about a separate division, the tax authorities make notes in the lines reserved for information about the parent organization. From this, the subordinate position of the units is obvious. It is also emphasized by law. In Art. 55 of the Civil Code of the Russian Federation states that separate divisions are not legal entities, although they have a number of individualizing characteristics.

The list of required features is short:

• administrative isolation, expressed in the presence of the separated part of the company of its own management, acting in accordance with the requirements of Art. 55 of the Civil Code of the Russian Federation on the basis of a power of attorney;
• territorial separation, in which the legal address of a dedicated branch of the company differs from the address of the executive body of the legal entity.

By internal decision, a part of the company may be endowed with other isolating characteristics. For example, such signs could be:

• separate balance;
• own personal account;
• personal calculation of payments to employees and other persons.

Legal status of the separated parts of the company in entrepreneurship and labor relations

Legal status a separate unit follows from its dependent status:

1. The rights of the dedicated part of the company are significantly limited compared to the functionality of the parent organization.
   For example, although the Supreme Arbitration Court has already been disbanded, the rule established by it in information letter No. 34 dated May 14, 1998 remains in force: separate divisions have the right to file claims in court only if they act on behalf of the organization. And, as indicated in the appeal ruling of the Tyumen Regional Court dated June 4, 2012 No. 33-2442/2012, separate divisions are not recognized as proper defendants, although Art. 29 of the Code of Civil Procedure of the Russian Federation and allows for filing a claim in court at their location.
2. The activities of separate divisions are the same work that the company performs in accordance with the codes of economic activities assigned to it, as well as the activities of employees (secretaries, lawyers, accountants, etc.) to create conditions for the performance of such work, or only part of such activities . Providing separate units with powers to carry out established types of activities is carried out by a legal entity.
3. Separate divisions are intermediaries in labor relations, not parties to them. Thus, the Supreme Court ruling dated November 3, 2006 No. 5-B06-94 states that the separated part of the company is not endowed with the legal capacity of a legal entity, and therefore separate divisions cannot act as employers.

If a worker is sent to carry out labor activity V separate division, then this qualifies as being sent on a business trip (see the regulations on the specifics of sending on business trips, approved by Government Decree No. 749 of October 13, 2008).

Types of separate divisions under the Civil Code and Tax Code of the Russian Federation

The Civil Code (Article 55) and laws on certain types of legal entities recognize the existence of 2 types of separate divisions:

1. A branch of a company is a separate division created to carry out the activities of an organization outside its location, the functions of a representative office, or only part of these functions, depending on the scope of powers transferred by the company.
2. A representative office of a company is a separate division dedicated to protecting and representing the interests of the company. Representative offices are especially common in organizations operating in several countries.

The Tax Code (Article 11) recognizes any territorially separated parts of legal entities as separate divisions if they have stationary workplaces. Place of work according to Art. 209 of the Labor Code of the Russian Federation is the place where the employee carries out his work duties or in which he needs to be in order to perform work. The place of work must be controlled by the employer.

A workplace is stationary if it is created for more than a month. The last requirement is related to the deadline for registering a separate division for tax purposes. In accordance with Art. 23 of the Tax Code of the Russian Federation, a legal entity notifies the tax authorities about the allocation of branches or representative offices within a month from the moment of their creation. If workplace created for a shorter period, it does not make sense to carry out its tax accounting as a separate division. If it was created for a period of more than a month, then the tax service recognizes it as a separate division.

What does it mean to recognize a separate division as such for tax accounting purposes?

Despite the fact that in accordance with Art. 11 of the Tax Code of the Russian Federation, a territorially delimited part of a company with a workplace created for a month or more is recognized as a separate division, its legal capacity differs from the rights and obligations of a branch or representative office.

The separated part of the company, recognized as such for tax purposes, usually does not have an administrative management apparatus, its own property and funds, and cannot independently exercise the powers of the company or protect its interests. The reason for this is the purpose of recognizing by the Federal Tax Service the territories with existing jobs as a division of the company.

As stated in Art. 11 of the Tax Code of the Russian Federation, recognition of a separate division as such is carried out for the purpose of implementing the legislation on taxes and fees.

For example, if an organization is developing subsoil on Far East, and its executive body is located in Central Russia, then paying taxes at the location of the legal entity is inappropriate for the implementation of tax control, as well as for other reasons. According to Art. 335 of the Tax Code of the Russian Federation, the company is registered at the place of mining. Obviously, their production stretches over more than a month, and the employees’ workplace will be a mine, quarry, etc. Then, for the purposes of paying mineral extraction tax, the tax authorities may recognize the presence of a separate division of the company.

The procedure for creating a separate division

Unlike separate divisions, which acquire this status at the direction of the tax authority, branches and representative offices are created according to a more complex procedure. The following stages are distinguished:

1. Making a decision on the separation of a part of the company according to the procedure established by law or internal regulations of the company.

For example, the law “On companies with limited liability» dated 02/08/1998 No. 14-FZ defines the following decision-making procedure:

• submitting the issue for consideration by the General Meeting of Shareholders 30 days before its convening;
• reviewing the question;
• agreement of 2/3 of the meeting participants with the opening of a separate division.

In Art. 65 of the Law “On joint stock companies» dated December 26, 1995 No. 208-FZ states that the creation of branches and representative offices may fall within the competence of the board of directors if this is provided for by the company’s charter.

1. Adoption local act regulating the work of a separate division of the company. Typically this is a branch/representative office provision.
2. Appointment by order of the head of the parent organization of the management of a separate division. Usually, at the same time, a power of attorney is issued in the name of the head of the department, since without it the head will not be able to manage the department of the company (Article 55 of the Civil Code of the Russian Federation).
3. Submitting an application to the Federal Tax Service in form P14001, approved. by order of the Federal Tax Service “On approval of forms and requirements...” dated January 25, 2012 No. ММВ-7-6/25@, on entering information about the division into the Unified State Register of Legal Entities. As indicated in the letter of the Department of Tax Policy of the Ministry of Finance of the Russian Federation dated December 16, 2009 No. 03-02-07/1-541, a separate division of a legal entity is considered created from the moment of making additions to the state register.
4. Submitting form S-09-3-1 to the Federal Tax Service, approved. by order of the Federal Tax Service dated 06/09/2011 No. ММВ-7-6/362@ within a month after the allocation of part of the organization. This is done to register a separate division with the tax service.

Sample regulations on a separate division of LLC, JSC

In Art. 5 of Law No. 14-FZ determines that an LLC operates on the basis of a regulation approved by the parent company. Usually the situation is similar with other legal entities (see Article 91 of Law No. 208-FZ, etc.).

• general provisions as a set of information about the parent organization and the allocated part, such as: names, addresses, etc.;
• purpose of creation, for example, ensuring compliance with the interests of a legal entity;
• legal status as a combination of rights, duties and responsibilities;
• the procedure for control carried out by the head office;
• data on management procedures, management competence;
• participation in labor relations;
• the procedure for disbanding a unit;
• other provisions as necessary.

Reporting of separate divisions in 2017-2018

One of the manifestations of control over branches and representative offices by a legal entity and government agencies is a reporting check.

For external reporting, a separate division of a legal entity provides the following documents on a monthly basis in 2017-2018:

1. Tax returns, if the unit is obligated to:
   • pay transport tax and property tax of the organization;
   • transfer tax withheld from employees' earnings to their income.
2. Form according to KND 1151111, approved. by order of the Federal Tax Service dated October 10, 2016 No. ММВ-7-11/551@, on the payment of insurance premiums to the Federal Tax Service.
3. Form 4-FSS, approved. by order of the Social Insurance Fund of September 26, 2016 No. 381, for a report to the Social Insurance Fund on the payment of contributions for insurance of the risk of occupational injuries.
4. Form SZV-M, approved. by resolution of the Board of the Pension Fund of the Russian Federation dated 01.02.2016 No. 83p, for information Pension Fund about contributions to pension insurance workers.
5. Other documents.

Internal reporting is determined in accordance with the instructions of the parent company. She puts it in gear accounting documentation, information about the implementation of plans, etc., which means for a separate division of the organization the need to prepare additional reports in the forms established in the organization.

Let's summarize. A separate structural unit of a legal entity is a part of a company that is separated territorially and administratively for the purpose of carrying out activities similar to the line of work of the parent company, and, if necessary, also representing its interests.

In addition to branches and representative offices identified in civil law as types of separate divisions, tax authorities for the execution of the Tax Code of the Russian Federation and other acts on taxation may recognize territorially allocated parts of a legal entity as separate divisions if they have stationary workplaces.

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 of the 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.

Authorized constituent documents the body 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 include information about this OP in its constituent documents.

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

• the head of the enterprise to issue an Order on its creation;
• 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.

Enough in domestic regulatory documents indicate the OP's address 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. The main differences: documenting the 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, will 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 off-budget 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. The Civil Code provides 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.

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

What is a separate division of an organization?

To answer this question, you must first understand the corresponding concept. The definition of this concept is given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation.

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

• difference in the addresses of the locations of the legal entity and the OP. The Financial Department of Russia notes that the separation of a branch (representative office) from a legal entity occurs if the addresses of the OP and the legal entity are different (Letter dated August 18, 2015 No. 03-02-07/1/47702);
• availability of stationary workplaces at the location of the OP (hereinafter referred to as SWP). The workplace organized by the legal entity must function for at least 1 month.

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

Types of separate divisions

Representation

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

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

• location at an address different from the address of the parent organization;
• Carrying out functions to represent the interests of legal entities and protect them.

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

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

Branch

Another type of separate structural unit is a branch.

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

The legal basis for activity is similar to that of a representative office:

• the director of the branch receives an appointment and power of attorney from the parent organization;
• the branch operates on the basis of the regulations adopted by the parent organization.

Important!

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

Information about branches and representative offices is reflected in the Unified State Register of Legal Entities, from where it is submitted to the tax authorities for accounting purposes.

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

The creation of a stationary workplace means the organization of conditions for the implementation of labor function employee, as well as directly carrying out labor activities (Letter of the Ministry of Finance of Russia dated March 1, 2012 No. 03-02-07/1-50,).

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

Having established that a separate structural unit of a legal entity is a branch or representative office that operates on the basis of special provisions and is not a legal entity, we proceed to consider the formalities required when creating an individual enterprise.

In what cases is a separate division opened?

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

For example, a parent organization registered in a federal city carries out wholesale trade in various regions Russian Federation. To trade in the relevant regions, it requires the organization of warehouses and the employment of hired workers who monitor the safety of goods on site. If stationary jobs are created for this purpose for a period of more than 1 month, the legal entity has the need to create an EP and, as a consequence, the obligation to register it with the tax authorities.

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

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

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

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

Materials for the video seminar

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

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

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

- How does one type of separate unit differ 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 workplace considered a separate unit?

First, let's look at the concept and characteristics of a separate division, which will help distinguish branches and representative offices from other separate divisions:

In accordance with Article 11 of the Tax Code of the Russian Federation, a separate division of an organization for tax accounting purposes is any division territorially isolated 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 on the powers vested in the specified division.

The first distinctive condition for recognition of a separate division for tax purposes is territorial isolation from the organization that created it. This sign means that it must be located on a territory different from the location of the organization.

The second condition for recognizing a separate division of an organization as such is the presence of equipped stationary workplaces 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, let us 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 or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Between the organization and an individual may consist of both labor and civil contracts, which significantly affects the establishment of the existence of jobs. Since the concept of a workplace is an element of the labor relations system (regulated by the Labor Code of the Russian Federation), it should be recognized that jobs, in principle, can only arise if an employment contract has been concluded with an individual. The conclusion of any other contracts, including the performance of work or the provision of services, cannot lead to the creation of jobs and, consequently, to the formation of a separate division.

Considering that any division in a separate territory with stationary workplaces is separate, it turns out that it begins to exist as soon as the stationary workplaces 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 an address other than the state registration address (and, therefore, location) of the organization.

A similar conclusion can be found in many decisions of arbitration courts. For example, in the resolution of the Federal Arbitration Court of the West Siberian District dated October 15, 2010 N A75-430/2010, it was concluded that in order to qualify the actions of an organization through a separate division, it is necessary to establish the presence of the following circumstances: territorial isolation and the fact that the organization’s employees are performing labor duties in location of the separate unit.

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 division can be identified:

territorial isolation of property owned by the organization from the organization itself, regardless of the fact of documentary registration of the creation of the corresponding unit;

availability of jobs created for a period of more than one month;

conduct of activities by the organization through the relevant division.

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

It follows from Article 55 of the Civil Code of the Russian Federation that a representative office is a separate division of a 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 a representative office.

Representative offices and branches 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 both on the separate balance sheet of the branch or representative office and on the balance sheet of the legal entity. In contrast, a division of an organization, which is a separate division in accordance with the Tax Code of the Russian Federation, may not have a separate balance sheet.

The heads of 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 divisions 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 Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8, which states that the relevant powers of the head of the branch (representative office) must be certified by a power of attorney and cannot be based only on the instructions contained in the constituent documents of a legal entity, regulations on a branch (representative office), or appear from the situation in which the head of the branch operates.

The difference between branches and representative offices lies in the range of tasks they perform. The branch carries out the functions of a legal entity, which should be understood as the types of production and other activities of a legal entity that 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 of representing and protecting the interests of a legal entity, i.e. in functions performed within the institution of representation by virtue of powers based on a power of attorney.

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

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

Many large enterprises open separate divisions. What this is is explained in Art. 11 clause 2 of the Tax Code. Let us next consider the definition and features of OP.

Definition

A separate division is an enterprise that is geographically separated from the main company and equipped with stationary workplaces at its location. The latter must be created for a period of more than 1 month. The location is the address at which the main company conducts its business through this established entity.

Key Features

The main criteria by which a separate division is determined are:

1. Territorial separation from the main enterprise.
2. Availability of stationary places for employees to carry out professional activity. Moreover, they must be formed for a period of at least 1 month.

These criteria have their own specifics. Let's look at them in detail.

Territorial separation

The Tax Code does not contain an explanation of this concept. We can talk about territorial separation after determining the corresponding (smallest) unit of division. In this case, it is advisable to turn to another related concept. The Charters of the regions of the Russian Federation use the term administrative-territorial unit. This category includes areas in cities, settlements of regional subordination, rural settlements, towns. However, from the analysis of the provisions of the Charters it follows that the definition used in them cannot be used when explaining tax issues. Considering separate and structural divisions, the territorial unit is established in accordance with the purposes of taxation. In this case we're talking about on the location of the enterprise geographically separate from the main company, outside the boundaries of the administrative unit in which registration was made and which is controlled by a specific tax office. Thus, we can draw the following conclusion. A separate division is a company created by the head office in the territory where supervision is carried out by a different Federal Tax Service than the one in which the latter is registered as a taxpayer.

Workplaces

Their presence is the second mandatory sign of a separate unit. In this case, workplaces must be stationary. To clarify the concepts, please refer to Art. 209 TK. In accordance with the norm, a work place is considered to be a place where the employee must arrive or where he needs to be in connection with the performance of his professional functions and which is controlled by the employer indirectly or directly. The key element in the definition is the employee of the enterprise. Accordingly, if there are no employees, then there are no jobs and no separate division. If there are no employees or no activity is carried out, then the location of the enterprise cannot be determined. It follows from this that we are not talking about creating an OP.

Nuance

Taking into account the above, a question arises regarding the moment at which a separate thing is created. This nuance is not explained in the Tax Code. However, it seems that it would be logical to consider the date of commencement of work activities as the moment of formation of the EP. In this case, the relevant information must be obtained not from the address of the main office, but from the geographically separated enterprise opened by it.

Important point

Recognition of an enterprise as a sole proprietorship does not depend on whether the constituent documentation contains indications that a separate division has been created and is operating. A separate balance sheet and account also do not act as integral features of a created company. As stated in the Rules for Maintaining Accounting Reports, the documentation must include data on the work of all operating facilities available to the enterprise. This, among other things, applies to those that were allocated to separate balance sheets. Explanations on this concept are given in Letter of the Ministry of Finance No. 04-05-06/27 dated March 29, 2004. A separate balance sheet is a list of indicators that are established by the main enterprise for its divisions. It follows from this that decisions regarding issues related to the allocation of EP and the establishment of calculated values ​​are made by society independently. There are no legal requirements for mandatory creation specific lists for each company within the corporation.

Registration with the Federal Tax Service

Let's look at how a separate division is registered. In accordance with Art. 83 clause 1 of the Tax Code, a company that has territorial branches opened by it, located within the Russian Federation, is obliged to register with the tax office at the address of each of them. To do this, you must submit a corresponding application to the control body. It should be sent within a month from the date of establishment of the enterprise. This need arises if the main company is not registered with the Federal Tax Service, located within the municipality in which a separate division has been created. Copies of the constituent documentation and the certificate of registration with the tax office are attached to the application. Checkpoint of a separate subdivision - code of the reason for registering an enterprise with the Federal Tax Service. It is tied to the location of the company. When registering, the OP has a TIN identical to the number of the main company. However, the checkpoint of a separate division will differ from the code of the main enterprise.

Responsibility

In case of violation of the deadline established list documents, a fine of 5 thousand rubles is imposed on the payer. If the subject is late by more than 90 days, he is charged with a penalty of 10 thousand rubles. These rules are established by Art. 116 NK. In addition, the subject may be held administratively liable under Art. 15.3 Code of Administrative Offences. Also, within a month, the main enterprise must report the formation of a unit to the Federal Tax Service at its location. This rule is provided for in Art. 23, clause 2.3 of the Tax Code. The message is drawn up according to a special form C-09-3. If the specified deadline is missed, the company faces a fine of 1 thousand rubles, and the manager - 300-500 rubles. These sanctions are provided for in Art. 15.6 Code of Administrative Offences.

additional information

If an enterprise has created a division and it is registered with the tax office at its location, there is no need to re-submit the application when subsequent separate companies are formed within the same municipality. In this case, the company sends a written message in accordance with Art. 23 clause 2 of the Tax Code. It is addressed to the Federal Tax Service at the location of the main office.

Termination of the activities of the OP

The enterprise must report the closure of the division to the Federal Tax Service at its location. In Art. 23 clause 2.3 of the Tax Code sets a month period for this. It seems that this period should be calculated on the dates of actual termination of work through the OP. A key sign of a unit's closure will be the dismissal or transfer of all employees. This event is equated by law to the liquidation of an OP. In addition, the closure should be reported to the Federal Tax Service, where the separate divisions were registered (at their location address). For this purpose, a corresponding application is sent. However, the legislation does not establish a specific deadline for sending it.

Tax accounting of separate divisions

In Art. 288 of the Tax Code defines the rules for making deductions from the profit of an enterprise to the budget. In accordance with in general, provided for in paragraph 2 of this norm, payment of advance and principal amounts is carried out by taxpayers at their address, as well as the location of each unit. The calculation of deductions is carried out in accordance with the shares of profit attributable to these OPs. They are calculated as the arithmetic average of the share of the average (average) number of employees and the residual rate of depreciable property established in Art. 257 (clause 1) of the Tax Code, for the taxpayer as a whole. The share of profits is thus calculated exclusively in the part to be credited to regional budgets (corresponding to a rate of 17.5%).

Legal status

The Civil Code provides for the following forms of separate divisions: branch and representative office. Their definitions are indicated in Art. 55 Civil Code. A representative office is a division located outside the location of the main company. His activities are aimed at representing the interests of the head office and protecting them. A branch is a division of a legal entity located outside its location and implementing part or all of its functions. These also include representation. The first type of OP can thus:

1. Negotiate.
2. To make deals.
3. Conduct advertising campaigns, marketing research oriented to studying the market within the region of its location.
4. Protect the interests of the head office in court.

The branch, in addition to the above functions, carries out direct business, production or other economic activity in accordance with the constituent documents and legislation.

Property tax

In accordance with Art. 373, clause 1 of the Tax Code, payers are persons who have material values, classified as objects of taxation under Art. 374 NK. Clauses 1 and 4 of this norm stipulate that they recognize real estate and movable property, including those transferred for temporary use, disposal, possession, trust management, included in joint activities or acquired under a concession agreement, held on a separate balance sheet as fixed assets. Normally, however, there are exceptions. They are movable material assets adopted from 01/01/2003. Accordingly, from this date only real estate classified as fixed assets acts as objects of taxation.

Rules for reflection in documentation

The Tax Code establishes a special procedure for calculating and paying tax on the property of an OP. In addition, there are rules in accordance with which a declaration for a separate division is drawn up. An example of the application of the provisions can be illustrated as follows. Within the meaning of Art. 384 of the Tax Code, a company that includes dedicated OPs pays tax (advance amounts) to the budget at the address of their location in relation to the property classified as the object of taxation. In this case, material assets must be on a separate balance sheet. The reporting rules are established by Art. 386, clause 1, para. 1. According to the norm, payers must, at the end of the tax and reporting period, send to the Federal Tax Service at their location, as well as at the address of each allocated OP, calculations for advance amounts and tax. A declaration is also attached to them. An enterprise may not create a separate balance sheet for a division. In this case, the acquired property of the OP will be reflected in the reporting of the head office.

Specifics of payment

In accordance with Art. 385 of the Tax Code, a company that accounts on its balance sheet for real estate located outside the location of its own or a designated OP, pays tax (advance amounts) to the budget in the territory where these objects are present. The amount of payments is determined as the product of the rate that is valid in a given region and the base (1/4 of the average value of real estate) established for the reporting/tax period according to the rules of Art. 376 NK. The calculation is carried out for each object separately. Thus, the main enterprise calculates, pays and declares tax at the location of the property, regardless of whether separate reporting will be provided for a separate division for the fixed assets that it uses.

Contributions to off-budget state funds

In accordance with federal legislation, in order for separate divisions to make the specified payments, the OP must meet a number of requirements. Contributions to extra-budgetary state funds are made if the representative office/branch:

1. Calculate payments and other remuneration to individuals.
2. They have a separate balance and account.

In this case, the OP must also provide calculations of contributions at its location. If a unit does not meet these requirements, it does not have corresponding responsibilities.

Electronic reporting

How is a separate division reflected in 1C? Let's consider the accounting of a government agency. The program supports the reflection of two types of EP: allocated and not allocated to an independent balance sheet. Reporting on the former can be carried out both in a separate information base and in one with the main enterprise. Data is entered about both the main office and the OP. Balance, main book and other registers, as well as regulated reports, can be generated consolidated for a certain group of institutions or separately for the main enterprise and separate divisions. If OPs are not allocated, then reporting on them is carried out in the same database as the main office. The corresponding data is entered into the Divisions directory with the assignment of the “Separated” category. Based on this parameter, the program will distinguish them from other additional offices.

Basic information

For separate divisions allocated to the balance sheet, the following data is indicated:

1. Name for primary documentation.
2. Information about registration with the Federal Tax Service at the location of the OP.
3. Criteria for maintaining individual document numbers.
4. Responsible persons of the OP. This may be the head of a separate department or another employee who has the right to sign.
5. Contact details.

For divisions that are not allocated to a separate balance sheet, the following information is indicated:

1. Maintaining separate plans for financial and economic activities.
2. Indication of OP details in the documentation.
3. Possibility of separate document flow.

The program also provides an option for setting up analytics in the context of OP by expense and income items. The information also indicates payment documents that are prepared by a separate division (invoice, etc.). They are formed by personal account of the OP in the treasury or in the bank.

Register

The cash desk of a separate division is maintained in accordance with regulatory requirements and instructions of the Central Bank. According to the order of the Central Bank, OPs must maintain a book and provide the company with a copy of the sheet according to the rules determined by the company’s financial policy. In this case, the reporting period is taken into account. A separate section should be maintained for each division. on her title page the number or name of the OP is indicated. The form of the separate division is transferred to the main office. It compiles a single book for the entire enterprise. (receipt and debit orders) are issued by the department cashier independently. They are numbered in the order prescribed by the financial policy of the enterprise. is generated in 2 copies. One of them remains in the OP, the second is transferred to the main office with the attached documentation. 1C provides for maintaining a separate book for f. 0504514 and registration according to f. 0310003. They are used by departments with established separate numbering criteria. For other representative offices/branches, documentation is recorded in a book and journal, which are prepared at the main office. It must be said that in the primary papers and reports, which provide for the column " Structural subdivision", the name of the separate division is displayed in it by the program. If it is missing, it will be added to the name of the main enterprise.