What is the difference between a branch and a separate division. Territorially separate subdivision

It happens that a newly formed LLC does not have an office that is not its own or rented. In this case, it is registered only at the legal address. For example, at the address of the head or founder of the organization. As long as the activity has not yet begun, and the correspondence, including from official authorities, arrives on time, this is not a problem. However, when an LLC begins to operate, there is a need for a physical location.

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In some cases, the nature of the work of the organization allows you to conduct business remotely, right from home, but when it comes to stores, warehouses and office space, the activity of the enterprise begins to imply work at the address. This situation implies the need to open a separate unit.

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

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

Separate division: implies the presence of at least one "stationary" workplace. The workplace means the conclusion of an employment contract with an employee for at least one month. Work should be controlled by the employer, and the employee himself should be at his workplace, according to his official duties. (Reason: article. 209 of the Labor Code)

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

Hired workers with whom cooperation is carried out remotely are also not considered “stationary”. Therefore, in order to conclude contracts with them, it is not at all necessary to register a separate division.

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

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

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

Here is what the Tax, Labor and Civil Codes say:

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

Given all of the above, the conclusion suggests itself that a clear definition of a separate enterprise simply does not exist. It turns out that during registration, the main task will be to avoid what is typical for branches and representative offices.

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

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

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

An organization can be classified as operating under DOS from the moment of creation (beginning of a quarter) of a separate subdivision that has the characteristic features of a branch or representative office. And according to DOS, the organization will be obligated to charge all tax fees of the general regime.

Features of opening branches and representative offices of LLC

Taking into account all of the above, it is reasonable to know what features distinguish a branch and a representative office.

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

We conclude: that in order to be eligible for the simplified tax system, it is necessary to check that the separate subdivision being created does not have the above signs of a branch or representative office. Also, in the Regulations on separate subdivisions, it should be indicated that it is not a branch and representative office, and does not have such signs, does not engage in economic activities independently. A separate division is managed by the head of the LLC, and no director is appointed.

Registration of separate divisions of LLC in the tax office

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

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

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

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

If a separate subdivision changes its location address, you should report this with the indication of the new address to the National Research Institute (form No. С-09-3-1) at the place of registration of the subdivision.

Registration of separate divisions of LLC

It is necessary to register a separate division in the funds at the location if it maintains a separate balance sheet, opens a current account and plans to accrue payments to employees. Registration must be completed within 30 days.

V Pension Fund the following documents must be submitted:

• Certificate of tax registration;
• Notification of the registration of an LLC on the territory of the Pension Fund of the Russian Federation;
• A package of documents confirming the opening of a separate subdivision, as well as a current account and balance sheet.
• application for registration (original)

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

• Certificate of tax registration;
• Certificate of GRUL;
• An order to open a separate subdivision, documents confirming the existence of a current account and opening a balance sheet;
• Letter from the state statistics of Rosstat;
• Notice of tax registration;
• The only original is the application for registration;

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

Responsibility for violations when opening a separate subdivision

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

• The deadline for filing a report on tax registration has been violated - 10,000 rubles. (Art. 116 NKRF);
• A separate subdivision is functioning, but not registered - fines will amount to 10% of income, for the period of activity without registration, plus 40,000 rubles. (Article 116 of the NKRF);
• Violated terms of registration in the Pension Fund - 5000 rubles. and 10,000 rubles. (in case the registration delay lasts more than 90 calendar days); (Article 27 No. 167-FZ of 12/15/2001);
• Similar fines are provided for violations of the terms of registration with the Social Insurance Fund 5000 rubles. and 10000 rub. respectively (Article 19 No. 125-FZ of 07/24/98).

Procedure for opening a separate division

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

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

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

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

Materials for the video seminar

Many, seeking to expand their business and increase sales, open new stores and branches of firms. A firm that offers services or works through offices in different areas is also not uncommon. Often, in connection with the expansion of business, the founders of a legal entity decide to create one or more separate divisions.

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

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

What is the difference between one type of subdivision and another?

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

- How and where to pay taxes and submit reports?

- Is one remote workplace considered a separate subdivision?

To begin with, let's consider the concept and features 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 subdivision of an organization for the purposes of tax accounting is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. A separate subdivision of an organization is recognized as such regardless of whether or not its creation is reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified subdivision.

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

The second condition for recognizing a separate subdivision of an organization as such is the availability of equipped stationary workplaces at its location. At the same time, 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 a calendar month). Since the concept of a workplace is not contained in the Tax Code of the Russian Federation, let's 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 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. Both labor and civil law contracts can be concluded between an organization and an individual, which significantly affects the establishment of the fact of the availability of jobs. Since the concept of a workplace is an element of the system of labor relations (regulated by the Labor Code of the Russian Federation), it should be recognized that jobs, in principle, can only arise if an employment contract is concluded with an individual. The conclusion of any other contracts, including the performance of work or the provision of services, cannot lead to the creation of jobs and, consequently, to the formation of a separate division.

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

A similar conclusion can be found in many decisions of arbitration courts. So, for example, in the decision of the Federal Arbitration Court of the West Siberian District of October 15, 2010 N A75-430 / 2010, it was concluded that in order to qualify the actions of an organization through a separate subdivision, it is necessary to establish the presence of the following circumstances: territorial isolation and the fact that job duties employees of the organization at the location of a separate subdivision.

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

territorial isolation of the property belonging to the organization from the organization itself, regardless of the fact of documenting the creation of the corresponding unit;

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

conducting activities by the organization through the relevant unit.

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

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

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

Representative offices and 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 relevant branch or representative office, but is either owned by a legal entity or belongs to a legal entity on a different legal basis. In accounting, the above property is reflected simultaneously 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 that 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 subdivisions that are separate in accordance with the Tax Code of the Russian Federation is absent.

The need for a power of attorney is also indicated in paragraph 20 of the Resolution of the Plenums of the 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, the regulation 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 performs 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 tasks of the representation are limited. They consist in representing and protecting the interests of a legal entity, i.e. in the functions performed within the framework of the institution of representation by virtue of an authority based on a power of attorney.

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

When comparing the concept of "separate subdivision 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 subdivision of an organization" is broader and includes any types of subdivisions of organizations, including number of branches. Therefore, when deciding whether the organization has a branch (representative office), it is necessary to take into account both the general features established in

The concept of "separate subdivision" is used both in the Civil Code and in the Tax Code.

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

civil law

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

Note!

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

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

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

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

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

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

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

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

— the presence of property;

— Regulations on the subdivision;

-supervisor;

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

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

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

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

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

— information about branches and representative offices of a legal entity (signature “n”).

At the same time, the location of a separate subdivision of a legal entity should not coincide with the location of the legal entity itself.

So, the Law determines the location of the organization (subclause “c” of paragraph 1 of Article 5), but the location of the separate subdivision of the organization is not defined.

It can be assumed, given the provisions of paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, that the location of a separate subdivision of a legal entity is understood to be the location of either the property of the specified subdivision or its head. It is obvious that the concept "the place isdenia" coincides with the concept "the address", namely the postal address.

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

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

How to determine what is "permanentexecutive bodies of a legal entity"?What other bodies and persons have the right to act on behalf of a legal entity without a power of attorney?

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

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

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

1)terms about the size authorized capital society; the shares of each of the participants;

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

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

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

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

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

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

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

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

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

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

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

—on the rights of shareholders;

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

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

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

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

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

2) on the composition and procedure for making share contributions by members of the cooperative and their liability for violation of the obligation to make share contributions;

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

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

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

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

Note!

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

This concept is also absent in the Law of February 8, 1998 No. 14-FZ “On Limited Liability Companiesstu", Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies" and the Law of 08.05.95 No. 41-FZ "About productionprivate cooperatives”. At the same time, as stated above, in these organizations, the functioning of several executive bodies of a legal entity is allowed. In this regard, there is a problem of allocating a permanent executive body of a legal entity.

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

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

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

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

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

When applying the rules set out in sub. "n" paragraph 1 of Art. 5 of Law No. 129-FZ, due to the fact that the Law does not establish a list of information contained in the Unified State Register of Legal Entities about branches and representative offices of a legal entity, the question arises: does information about their location refer to the specified information? It does not follow from the Law that this information is mandatory. Thus, there may be cases where the Unified State Register of Legal Entities does not contain information about the location of branches and representative offices of a legal entity.

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

-name of the legal entity,

- its location,

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

— other information provided by the Law for legal entities of the relevant type.

At the same time, paragraph 3 of this article provides that changes in the constituent documents become effective for third parties from the moment of their state registration, and in cases established by the Law, from the moment the body responsible for state registration is notified of such changes. However, legal entities and their founders (participants) are not entitled to refer to the absence of registration of such changes in relations with third parties acting subject to these changes.

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

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

Tax law

According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation for the purposes of the Tax Code, in particular, the following concept is used: a separate subdivision of an organization— any terrysubdivision torionally separated from it, locallylocation of which stationary works are equippedwhose places. A separate subdivision of an organization is recognized as such regardless of whether or not its creation is reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified subdivision. At the same time, the workplace is considered stationary if it is created for a period of more than one month.

In addition, this paragraph defines the concept "location of a separate subdivision of a Russian organization"(the place where this organization operates through its separate subdivision).

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

So, the concept of "separate subdivision of the organization" is revealed using the following concepts:

- territorial isolation,

-workplace,

- Equipped workplace.

concept "territorial isolation subsectionleniya» and in the Tax Code of the Russian Federation and the Civil Code of the Russian Federation is absent. First of all, it is necessary to define the concept "territorial divisionlaziness." The Explanatory Dictionary of the Russian Language 1 defines the corresponding words, in particular, as follows and gives examples of the use of these words:

territory— limited land space (factory territory);

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

Wherein "space" defined in particular as:

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

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

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

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

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

Note!

In Chapter 25 "Corporate Income Tax", in addition tothe concept of "territory" the concept of "aquatoria".

So, in accordance with paragraph 3 of Art. 261 of the Tax Code of the Russian Federation, the procedure provided for by the specified paragraph applies to the development costs natural resources relating to a part of the territory (water area) provided for by the relevant license. At the same time, the taxpayer must keep separate records of such expenses for the relevant part of the territory (water area).

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

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

For your information!

According to the above explanatory dictionaryvatory— surface of the body of waterema; water area (port area, Misea ​​ocean).

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

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

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

concept "workplace" is related to labor relations and should be applied in the sense in which it is used in labor legislation. Article 209 of the Labor Code of the Russian Federation determines that the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Thus, this concept is not associated with the presence of any property (including depreciable property), which is necessary, in particular, for carrying out work. At the same time, we draw attention to the fact that the Labor Code of the Russian Federation does not specify what is meant by the control of the employer.

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

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

concept used in several articles of Chapter 25 of the Tax Code of the Russian Federation. In particular, in accordance with the first part of Art. 275.1 taxpayers, which include separate subdivisions that carry out activities related to the use of facilities of service industries and farms, determine the tax base for this activity separately from the tax base for other types of activities.

At the same time, we note the following: paragraph 25 of Art. 1 of the Law of 06.06.2005 No. 58-FZ “On amendments to the WTOruyu tax code Russian Federation and somery other legislative acts of the Russian Federationabout taxes and fees"(hereinafter - the Law) in Art. 275.1 of the Code in part one word "isolated" excluded. The specified paragraph will come into force on January 1, 2006 (clause 1, article 8 of the said Law).

Features of tax payment by taxpayers with separate subdivisions are established by Art. 288 of the Tax Code of the Russian Federation (clause 3 of article 287 of the Tax Code of the Russian Federation). Payment of advance payments, as well as tax amounts to be credited to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, is made by taxpayers - Russian organizations at the location of the organization, as well as at the location of each of its separate divisions based on the share of profit attributable to these separate divisions. Paragraph 1 of Art. 289 of the Tax Code of the Russian Federation, it is established that taxpayers, regardless of whether they have an obligation to pay tax and (or) advance tax payments, the features of calculating and paying tax, are obliged, after each reporting and tax period, to submit to the tax authorities at their location and the location of each separate subdivision relevant tax declarations in the manner prescribed by this article.

Keep in mind!

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

When applying the concept "separate subsectionorganization" For income tax purposes, the following issues arise in particular.

Can any subdivision territorially separated from it, at the location of which one stationary workplace is equipped, be a separate subdivision of the organization?

Is a separate subdivision of the organization created if, at the location of the territorially isolated subdivision, stationary workplaces are equipped, but not occupied by employees? That is, the relevant labor relations between the employee of this unit and the employer arose later than the employer equipped the corresponding stationary workplaces (for example, as a result of the construction industrial premises or if they are rented).

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

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

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

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

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

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

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

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

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

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

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

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

For failure to provide or untimely submission of the information necessary for inclusion in state registers, as well as for the provision of false information, applicants, legal entities and (or) individual entrepreneurs bear responsibility established by the legislation of the Russian Federation (clause 1, article 25 of Law No. 129-FZ).

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

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

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

The submission by the taxpayer to the tax authorities of the list of its separate divisions of the Tax Code of the Russian Federation is not provided. How to establish a complete list of divisions classified as separate divisions in accordance with the Tax Code of the Russian Federation and taken into account for the purposes of taxation of profits during the tax period?

Paragraph 1 of Art. 289 of the Tax Code of the Russian Federation, it is established that taxpayers, regardless of whether they have an obligation to pay tax and (or) advance tax payments, the features of calculating and paying tax, are obliged, after each reporting and tax period, to submit to the tax authorities at their location and the location of each separate division relevant tax returns. An organization, which includes separate divisions, at the end of each reporting and tax period, submits to the tax authorities at its location a tax declaration for the whole organization with distribution by separate divisions (clause 5, article 289 of the Tax Code of the Russian Federation).

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

Are there tax sanctions for failure to submit the Declaration at the location of separate subdivisions and, consequently, the specified data? If at the location of a separate subdivision the Declaration is not submitted in full (for example, it includes Title page(Sheet 01), subsection 1.1 of Section 1 and (or) subsection 1.2 of Section 1, but not included in Appendix No. 5a to Sheet 02), the corresponding liability for this violation is not provided. This violation is qualified as a violation of the rules for compiling tax return.

Until the entry into force of the relevant norm of the Law of July 9, 1999 No. 154-FZ “On amendments and additionsniya in part one of the Tax Code of the Russian Federationwalkie-talkie" Art. 121 of the Tax Code of the Russian Federation, according to which violation of the rules for compiling a tax return by a taxpayer, that is, failure to reflect or incomplete reflection, as well as errors that lead to an underestimation of the amount of taxes payable, entail a fine in the amount of five thousand rubles.

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

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

Keep in mind!

When applying paragraph 1 of Art. 122 of the Tax Code of the Russian Federation are taken into account according toof the provisions of paragraph 2 of the Ruling of the Constitutional Court Rosof the Russian Federation dated 04.07.2002 No. 202-O.

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

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

Other types of measures, namely the collection of fines, by their nature go beyond the scope of the tax liability. They are not restorative, but punitive in nature and are a punishment for a tax offense, that is, for an illegal guilty act provided for by law, committed intentionally or through negligence. In the proceedings on a case of a tax offense, both the very fact of the commission of such an offense and the fault of the taxpayer must be proved.

As follows from the Constitution of the Russian Federation (Article 54, part 2), an offense is a necessary basis for all types of legal liability. At the same time, the content of specific elements of offenses in the public sphere should be consistent with the principles of the rule of law in its relations with individuals and legal entities as subjects of legal responsibility. Such a legal position was formulated by the Constitutional Court of the Russian Federation in its Resolution dated April 27, 2001 in the case of the verification of a number of provisions of the Customs Code of the Russian Federation. As expressing a general legal principle, it is applicable to liability for a tax offense as well.

In accordance with Art. 106 of the Tax Code of the Russian Federation, a guilty illegal (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, tax agent and other persons, for which liability is established by the Tax Code of the Russian Federation, is recognized as a tax offense. Absence of guilt of a person in committing a tax offense Art. 109 of the Tax Code of the Russian Federation refers to the circumstances excluding bringing him to responsibility. Consequently, the need to establish the guilt of the taxpayer in order to bring him to responsibility is directly prescribed by the Tax Code of the Russian Federation.

In the Resolution of the Constitutional Court of the Russian Federation dated January 25, 2001 in the case of checking the constitutionality of paragraph 2 of Art. 1070 of the Civil Code of the Russian Federation, a legal position is expressed, according to which the absence of guilt in case of violation of obligations in the public law sphere is one of the circumstances precluding the application of sanctions, since it indicates the absence of the corpus delicti itself.

A different interpretation of the composition of the offense, including tax, as a basis for liability would be contrary to the nature of justice. The court, in connection with bringing taxpayers to responsibility for violation of tax obligations, based on the principles of competitiveness and equality of the parties, cannot confine itself to formally stating only the fact of violation of these obligations, without revealing other circumstances related to it, including the presence or absence of fault of the relevant subjects, in which no matter how it appears.

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

In addition, it should be borne in mind that, in accordance with the Ruling of the Constitutional Court of the Russian Federation of January 18, 2001 No. 6-0, the provisions of paragraphs 1 and 3 of Art. 120 and paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, which define the elements of tax offenses that are not sufficiently separated from each other, cannot be used simultaneously as a basis for holding liable for the same illegal actions.

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

Situation

The organization and all its separatedivisions are located on the territory of one subRF project. In 2005, the organization of the payment of tax to the budgetthe subject of the Russian Federation at the place of its location, taking into accountattributable to these divisions producedin a timely manner. Should in this case for non-paymentthat tax at the location of separate subdivisionsdivisions apply Art. 122 of the Tax Code of the Russian Federation and at the same timecharged penalties in accordance with Art. 75 of the Tax Code of the Russian Federation?

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

Separate subdivisions of the organization may be located on the territory of one subject of the Russian Federation. Is a penalty charged on tax amounts (including in the form of advance payments paid during the reporting (tax) period) that are not paid to the budget of the said subject at the location of the said separate subdivisions?

Paragraph 1 of Art. 75 of the Tax Code of the Russian Federation, it is determined that penalties are recognized as the amount of money established by the named article, which the taxpayer, payer of fees or tax agent must pay in the event of payment of due amounts of taxes or fees, including taxes paid in connection with the movement of goods across the customs border of the Russian Federation, in later than established by law about taxes and fees terms.

Thus, penalties are charged only in case of late payment of due amounts of tax. Obviously, the amount of tax due is understood as the amount of tax paid in full to the appropriate budget (for example, to the budget of a constituent entity of the Russian Federation). At the same time, Art. 75 of the Tax Code of the Russian Federation does not establish a mandatory place for paying tax (for example, at the location of the organization or at the location of its separate subdivisions). In this case, the place of payment of the tax does not matter. Therefore, in case of timely payment of tax to the relevant budget, no penalty is charged.

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

This means that, although separate subdivisions of Russian organizations may fulfill the obligations of the said organizations to pay income taxes at the location of these separate subdivisions, it is not the separate subdivisions of the organization that are recognized as taxpayers, but the organization itself.

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

The terms and procedure for paying income tax and tax in the form of advance payments are established by Art. 287 of the Tax Code of the Russian Federation. Calculations of the taxpayer with the budget from July 1, 2005 are carried out in accordance with the Recommendations on the procedure for maintaining a database in the tax authorities "Calculations from budgetjet"(approved by Order of the Federal Tax Service of Russia dated May 12, 2005 No. ШС-3-10/201). Previously, these calculations were carried out in accordance with the Recommendations on the procedure for maintaining personal account cards of taxpayers, payers of fees and tax agents in tax authorities (approved by Order of the Ministry of Taxation of Russia dated 05.06.2002 No. BG-3-10/411).

Therefore, before January 1, 2005, if the organization and its separate subdivision are located in the territories of different municipalities, late payment of tax at the location of the separate subdivision to the budget of the municipality means late payment of tax to this budget, since, according to the above recommendations, pay at the location organizations the appropriate amount of tax to the budget of the municipality, in whose territory a separate subdivision of the organization is located, is not possible.

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

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

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

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

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

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

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

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

1 Ozhegov S. I. and Shvedova N. Yu. Explanatory dictionary of the Russian language: 72,500 words and 7,500 phraseological expressions (Russian Academy of Sciences. Russian Language Institute: Russian Cultural Fund). - M .: Az, 1993. 960 s).

All domestic legal entities have the opportunity to open one or more separate divisions. These are both branches and representative offices, as well as other divisions, for example, stationary workplaces. The procedure for their opening and the requirements for them, as well as their definitions, are sufficiently described in the current legislative acts. Russian law. Let's try to figure out the difference between a branch and a separate subdivision.

General provisions on separate divisions

The Civil Code of the Russian Federation allows the creation and existence of legal entities that, along with other business entities, take part in entrepreneurial activities or are created to achieve specific goals (Article 48 of the Civil Code of the Russian Federation).

All organizations of the Russian Federation have the right and have the ability to create separate subdivisions (Article 55 of the Civil Code of the Russian Federation). It is important to consider that separate subdivisions are not legal entities and lack the legal capacity inherent in legal entities.

It must be remembered that a separate subdivision must be located at an address different from the address of the main organization, and have stationary jobs, i.e. jobs created for a period of more than one month (Article 11 of the Tax Code of the Russian Federation). A separate subdivision of a legal entity is a branch, representative office or stationary workplace (Article 55 of the Civil Code of the Russian Federation and Article 11 of the Tax Code of the Russian Federation).

Information about each separate subdivision, with the exception of stationary jobs, is indicated in the unified state register of legal entities, for which the organization creating them must submit completed applications to the tax inspectorate according to approved forms No. P13001, No. P13002 or No. P14001.

Types of separate divisions

Civil law names two structural divisions: a branch and a representative office. Other structural divisions, isolated from the main organization, do not contain the norms of the Civil Code of the Russian Federation.

But the list of divisions that are separate from the main organizations is also contained in other legislative acts.

Thus, the tax legislation directly indicates the possibility of recognizing as separate parts of the main organization any territorially separate structure that has stationary jobs.

A workplace, including a stationary one, is a place that is controlled by the organization and in which the employee performs his labor functions (Article 209 of the Labor Code of the Russian Federation).

Currently, the list of structures that can be recognized as separate entities is open and is not limited to a branch and a representative office.

Each type of structural units has not only its own distinctive features but also common.

Let's try to figure out what is the difference between a branch and a separate subdivision.

Branch Differences

The concept of a branch is enshrined in paragraph 2 of Art. 55 of the Civil Code of the Russian Federation, according to which the branch is not only geographically removed from the main organization, but also performs all or part of the functions of the main organization, and also performs the functions of a representative office.

It should be noted that the concepts of representation and branch are different. Such differences already follow from the definitions of both structural units, which are given in civil law.

Consider the main differences between a branch and a separate subdivision in the table below.

No. p / p	Characteristics branch	Characteristics representative offices	Characteristics stationary workplace
1	Functions of a separate division
	Carries out all or part of the functions of the main organization. Performs representative functions.	Represents and defends the interests of the parent organization.	The employee carries out his labor activity at work.
2	Possibility of commercial activity
	Can lead commercial activity.	Cannot conduct commercial activities.	Cannot conduct commercial activities. Only labor relations.
3	The need to notify the tax office of the creation
	There is no obligation to notify the inspectorate.	There is no obligation to notify the IRS.	It is necessary to notify the tax office within a month from the date of organization.
4	Reflection of information about a separate subdivision in the Unified State Register of Legal Entities
	Information is contained in the Unified State Register of Legal Entities.	Information is contained in the Unified State Register of Legal Entities.	Information in the Unified State Register of Legal Entities is not contained.
5	Creation order
		The decision of the owner of the organization.	Order of the sole executive body of the organization.
6	Possibility of independent accounting
		Can manage independent accounting.	Cannot keep independent accounting records.
7	Opportunity to open your own bank account
		Can open their own checking account.	Unable to open own checking account.

As can be clearly seen from the table, the differences between different types separate structural divisions are much broader than just differences in names.

The differences existing between different types of structural divisions are of a fundamental nature and consist mainly in the functions for the performance of which a corresponding separate structural division is created, as well as for the purposes for which a structural division is created.

It should also be remembered that between separate structural divisions there are certain common features, for example, they are not legal entities, information about them does not need to be reflected in the charters of organizations, their leaders can only act on the basis of a power of attorney, and the structural units themselves can only act on the basis of regulations. Each separate subdivision must have stationary workplaces.

When making a choice between a branch or a separate subdivision, one should decide on the functions that the corresponding structure will perform, as well as the goals for which it is created. Moreover, the body of the main organization that decides to open separate subdivisions also needs to take into account the following: whether independent accounting is planned for separate subdivisions, and whether such subdivisions will be endowed with property and whether settlement accounts will be opened for them.

As a conclusion to this article, it can be noted that the right to choose a specific separate subdivision belongs exclusively to the organization that creates it. But when making a final decision on the form of a separate subdivision, it is simply necessary to study in detail the features of each of the possible ones.

The conditions of the modern market force companies, organizations, enterprises, etc. use various opportunities and schemes that allow you to increase the profitability of business, increase profits, expand the boundaries of activities, etc. Absolutely all companies are trying to expand their production to the maximum possible level, promote their products to the market, etc.

One of the ways to achieve this goal is to create branches of the organization, which are separate subdivisions of a legal entity. The tax code of our state obliges all entrepreneurs to register at the place of their main activity and at the place of work of their representative offices.

A company that has branches in the territory of our country is obliged to register with the tax authorities in each locality where its representative offices operate (in the event that branches are located in another region that differ from the place of business of the main enterprise).

Main information

General concept

What it is? Many companies are not limited to conducting their activities in one locality. They grow in different cities over vast distances. In this regard, the tax legislation of the state provides for the possibility of officially creating so-called separate divisions.

This term includes several concepts, but branches and representative offices enjoy the highest level of popularity. The main difference between separate subdivisions of a legal entity is their location outside the place of business of the main company.

Based on the above definitions, it can be concluded that the branch has higher powers regarding representation. This is due to the fact that a branch, unlike a representative office, can carry out all the activities of the main company in full. Representation, however, cannot conduct any legal activity. It is worth noting that a branch can only conduct the type of activity that the main organization is engaged in.

Regardless of the types of separate subdivisions, they are not a legal entity. Accordingly, all responsibility for their activities lies solely with the main organization. All property used in the course of the activities of a separate division also belongs to the owner company.

Russian legislation obliges legal entities to indicate their representative offices and branches in all constituent documents. Based on this, it follows that before creating a separate division, the company must completely change all its papers.

If we consider the process of creating a separate subdivision in general, then it consists of two stages:

1. Making decisions on the creation of a branch or representative office by the main company or by a shareholder (if the owner of the company is the only participant).
2. Submission of an application to the tax authority for registration of changes in the constituent documentation in connection with the opening of a separate subdivision.

The tax authority undertakes to consider the submitted application and issue a verdict on it within five working days from the date of submission of the document. From the moment of its adoption by the tax authority, the amended constituent documentation begins to have legal force for any third parties.

The decision to open a separate division is a serious step for any organization, since this process will entail material costs at first. Therefore, before a company sets up a branch or representative office, it must weigh all the pros and cons, as well as allocate funds from the budget. Only in this case, the opening of a separate division will be justified and will bear "fruits" in the future.

Signs by law

The term "separate divisions" is described in detail in the Tax Code of our country. In addition, their main features are also indicated there. In 2019, in the era innovative technologies, it is very easy to get acquainted with this provision in more detail, it is enough just to use the possibilities of the Internet.

Separately, it is only worth saying that if a company division does not satisfy at least one of the conditions listed in the tax code, then it is not separate. The main criterion that regulates the status of a unit is its location. It must be different from the place of business of the main organization, otherwise it will be considered an ordinary unit without separate status.

As already mentioned, the main difference between a branch and a representative office is that the former can conduct legal activities. However, apart from listed species, the organization can create other forms of structural units.

Based on the information described above, we can conclude that a separate subdivision is a branch, representative office, etc. an activity whose place of business is different from that of the parent company.

Creation order

The procedure for creating a separate subdivision can be divided into several main stages:

1. Making decisions on the formation of branches (representative offices) by the owners of the organization, which is drawn up according to a generally accepted model on the territory of our state.
2. Amendments to all constituent documentation and its registration with the tax authority.
3. Approval of the order to create a unit.
4. Appointing a person to a senior position and issuing a power of attorney for him, which provides the right to represent the interests of the main organization.
5. Material support of the created unit (property, personnel, etc.).

Status of a separate subdivision of a legal entity

AND tax statuses separate divisions differ significantly from each other. So, for example, in the tax legislation there is the concept of "separate subdivision of the organization", the definition of which implies any territorial subdivision, regardless of its location.

However, separate subdivisions (branches, representative offices, etc.) are not independent taxpayers, they only perform the main functions for which they have the authority. Therefore, the responsibility for paying taxes, keeping records, etc. is wholly owned by the parent company.

Tax legislation also sometimes resorts to the term "permanent establishment". In most cases, this refers to a foreign subdivision conducting its activities in the territory of our country. The word "permanent" implies that this representative office is located in the Russian Federation on a permanent basis.

Other actions

decision to open

The rights to make decisions on the opening of separate divisions belong to the governing board of the organization or to one leader (with a single participant). Unlike the old legislation, the current one does not provide for registration at the state level.

A detailed statement of all adjustments in the constituent documents of the organization should be sent only to the tax authority. If the unit is opened without performing this procedure, then the legal entity is subject to administrative liability, expressed in the form of warnings or a fine of fifty minimum wages.

The most interesting thing is that the provisions of the Tax Code do not contain information about the specific information that should be present in the charter of a separate subdivision. Therefore, all the data contained in it are entered only at the decision of the parent company.

Workplace and regulations

Separate divisions of the organization must have a stationary workplace.

It is recognized as such if:

• operates for more than one calendar month;
• the staff is located directly in it and arrives there for the purpose of conducting professional activities;
• the employer controls his work in one form or another;
• the place serves for the actual performance of official duties by the staff;
• labor relations are established with employees in a certain form.

Accordingly, a workplace cannot be, for example, warehouses for which no staff is allocated, etc.

The legislation does not contain specific instructions and requirements according to which the process of creating a separate subdivision should be carried out.

However, most organizations use the following algorithm:

1. Making decisions on the formation of a separate subdivision.
2. Job analysis.
3. Issuance of a resolution on the creation of a separate subdivision.
4. Implementation of changes in the rules of the labor regulations of the company.
5. Submission of amended documentation to the tax authority for receipt (registration reason code).

Accounting Features

Each company must have a cash register for settlements. All receipts Money, regardless of the calculation method, are fixed in . Entries in it are carried out by the cashier, immediately after the commission of monetary manipulations. Quite often the question is asked: "due to the specifics of the activities of a particular company, can it have more than one cash book." The answer to that is definitely no.

Sufficiently strong problems for the activities of a separate subdivision are delivered by the fact that, in accordance with the adopted legislation, they must have chronological numbering. It is quite problematic to do this, since there may be a discrepancy between the data of branches and the information of the parent company.

Branch management

By decision of the governing board of the parent organization, a separate subdivision may have its own bank account. This fact does not directly affect the legal status of the unit.

Branches carry out entrepreneurial activities on behalf of the parent organization. Accordingly, managerial manipulations with the branch can be carried out by the management bodies of the main company or an employee assigned to management. In this case, he will have his powers for the period specified in the power of attorney issued to him.

Related Requirements

Location

The requirements for the location of a separate subdivision are quite simple. Branches or divisions must be located in a region different from the place of business of the parent company. Otherwise, the division will not have the status of separate. They will be considered territorial. Based on this, it can be understood that a branch or representative office should be taxed at the place of business.

Types, taxes and accounting in funds

There are many types of separate subdivisions.

The three most commonly used are:

• branch;
• representation;
• normal division.

According to the current legislation, each company is obliged to become tax registered. In addition, they are required to report all changes to the tax authority at the place of activity within three days.

If we consider separate divisions, then they should also be registered with the tax authority. However, there is one feature: branches or representative offices can use taxation systems different from the parent organization, in particular (simplified taxation system).

It is also worth paying special attention to the setting of separate units in the funds.

So, for the registration procedure in the Pension Fund, the following package of documents is required:

• information on registration with the tax authority;
• notice of registration in the county in which the particular Pension Fund operates;
• documents confirming the existence of an individual bank account with the unit;
• directly the application for registration.

At the same time, for the registration procedure with the Social Insurance Funds, the required package of documents is changing.

It should include:

• information on state registration;
• information on registration with the tax authorities;
• information on registration with the Social Insurance Fund of the main organization;
• decision to open a separate subdivision;
• application for registration;
• information confirming the existence of their own bank account;
• Rosstat letter.

Deadlines and Documentation

Before starting the process of registering a separate division, a company needs to collect three different packages of documents:

The submission of each of the applications must be completed within a certain period:

Other legal provisions

An application for registration of a separate subdivision submitted to the tax authority must include confirmation of the following facts:

• the decision to make adjustments to the constituent documentation;
• a detailed description of the changes;
• proof of payment.

These documents can be sent to the tax authority using the services of postal companies or provided personally by an authorized person. The registration procedure takes place within 5-7 working days from the date of submission of the relevant application.