Separate subdivision of a legal entity: reporting and taxation. Separate divisions - briefly about the most important

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

Code code of strife

Unfortunately, the organization of new divisions of the company is not always handled by lawyers. Often this work is entrusted to the sales department, for which the main task is to quickly increase the presence in the region. And how it will be documented, for the "salesmen" is the tenth thing. Accordingly, if there are no lawyers in the company, the accountant has to study the procedure for registration and monitor compliance with it.

The Civil Code, when talking about separate subdivisions, means branches and representative offices (Article 5 of the Civil Code of the Russian Federation). Their opening entails significant consequences for the participants in civil circulation and, therefore, is associated with a number of legally significant actions, namely: making a decision to open, amending the charter, making a branch seal, registering, etc.

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

Signs of a workplace

The first question that arises immediately after reading the above definition from the Tax Code of the Russian Federation is: what is a workplace outside the location of the organization? The tax code does not provide a corresponding explanation. Therefore, by virtue of the provisions of paragraph 1 of Art. 11 of the Tax Code of the Russian Federation applies the terminology of labor law. According to Art. 209 of the Labor Code, 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.

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

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

From this we can draw the first conclusions on situations where a separate subdivision in the sense given to this term by the Tax Code of the Russian Federation does not appear.

Situation one

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

Situation two

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

Situation three

The homeworker does not form a separate subdivision, because in this case, the condition that the workplace is under the control of the employer is not met. For the same reason, there will be no separate unit when sending an employee on a business trip. After all, the organization does not have the ability to control the workplace of a seconded employee. Moreover, the seconded person is subject to the rules of the internal work schedule operating at the place of business trip (decision of the Supreme Court of the Russian Federation of 06.20.02 No. GKPI 2002-663, decision of the Supreme Court of the Russian Federation of 08.27.02 No. KAS 02-441).

Stationary or not?

The next point that needs to be taken into account when deciding whether there is a separate subdivision is the stationarity of the workplace. Here the situation is more complicated.

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

Where does the territory end?

Another criterion to determine whether an organization has a separate subdivision is territorial. As stated in Art. 11 of the Tax Code of the Russian Federation, the subdivision must be territorially isolated from the organization. At the same time, the territory is usually understood as the municipality in which the organization is located. Accordingly, if a workplace appears in another municipality, then, subject to other conditions, we can talk about the presence of a separate subdivision.

A word about responsibility

And what will happen if you do not announce the creation of a separate division? According to the Ministry of Finance, liability for failure to report to the inspection within the prescribed period of information on the creation of a separate subdivision is established by paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, according to which the fine is 200 rubles. for each unsubmitted document (letter of the Ministry of Finance of Russia dated April 17, 2013 No. 03-02-07 / 1/12946; see "").

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

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

No need to notify funds

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

A.A. Nazarov

1. General Provisions

The concept of "separate subdivision" is used as in the Civil Code Russian Federation(Civil Code of the Russian Federation), and in the Tax Code of the Russian Federation (TC RF).

Therefore, in order to avoid errors in the application of the above concept for profit tax purposes, it is advisable to identify differences between the concept of "separate subdivision legal entity", used in the Civil Code of the Russian Federation, and the concept of "separate subdivision of the organization", used in the Tax Code of the Russian Federation.

2. Definition of the concept of "separate subdivision" in civil law

2.1. Definition of the concepts "representative office" and "branch"

In accordance with paragraph 1 of Art. 55 of the Civil Code of the Russian Federation, a representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of the legal entity and protects them.

According to paragraph 2 of Art. 55 of the Civil Code of the Russian Federation, 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.

Thus, according to the Civil Code of the Russian Federation, representative offices and branches are two various types(varieties) of separate divisions of a legal entity located outside its location, which represent the interests of the legal entity and protect them or perform all or part of its functions, including the functions of representation.

Other types of separate subdivisions of a legal entity are not established in the Civil Code of the Russian Federation, that is, the list of separate subdivisions of a legal entity is closed.

At the same time, we draw the attention of the readers of the journal to the following.

The concepts of "subdivision" and "separate subdivision" 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 these divisions of the organization perform different functions. A branch can perform all the functions of an organization, and a representative office - only some of them (represent the interests of the organization and protect them).

This means that the representative office is, in essence, one of the types 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.

In accordance with paragraphs 1 and 2 of Art. 55 of the Civil Code of the Russian Federation, the main feature of separate divisions of an organization is their location outside the location of the organization itself.

What is the status of the above 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 a 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, we can conclude that the necessary attributes of any separate subdivision include:

Property;

Availability of Regulations on the subdivision;

An indication in the constituent documents of the existence of a subdivision;

Supervisor.

2.2. Which structural divisions of the organization are separate divisions

The Civil Code of the Russian Federation does not define the concept of "location outside the location". 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.

How in Civil Code of the Russian Federation the location of the legal entity is determined? What documents contain information about the location of a legal entity?

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. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney.

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 the 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.

In any case, the location of the legal entity coincides with the place of its state registration.

The Civil Code of the Russian Federation does not define the concept of "place of state registration of a legal entity".

In accordance with Art. 1 of the Federal Law of 08.08.2001 N 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs" (hereinafter - Law N 129-FZ), this Law regulates relations arising in connection with the state registration of legal entities during their creation, reorganization and liquidation , when making changes to their constituent documents, in connection with the state registration of individuals as individual entrepreneurs and state registration when individuals terminate their activities as individual entrepreneurs, as well as in connection with the maintenance of state registers - the unified state register of legal entities and the unified state register of individual entrepreneurs.

In this regard, when determining the place of state registration of a legal entity and the location of its branches and representative offices, readers of the journal should be guided by Law N 129-FZ.

Subparagraphs "c" and "n" of paragraph 1 of Art. 5 of Law N 129-FZ establishes that the unified state register of legal entities contains, in particular, the following information about the 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), at which communication with the legal entity is carried out;

Information about the branches and representations of the legal entity.

Thus, the location of a legal entity is understood as the address 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), which is used to communicate with the legal entity .

The location of a separate subdivision of a legal entity should not coincide with the location of the legal entity itself.

At the same time, the Civil Code of the Russian Federation and Law N 129-FZ do not define the concept of "location of a separate subdivision of an organization."

Considering the provisions of paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, it can be assumed that the location of a separate subdivision of a legal entity is understood as the location of either the property of the above subdivision or its head.

Obviously, the concept of "location" coincides with the concept of "address", and such is the postal address.

In this regard, if, for example, the address of the permanent executive body of a legal entity (plant) is Ivanovsk, Ivanova street, building 1, building 1, the address of workshop No. 1 of the plant is Ivanovsk, Ivanova street, building 1, building 2 , and the address of shop No. 2 of the plant is Ivanovsk, Ivanova street, house 1, building 3, then shops No. 1 and 2 can be considered as separate divisions of this organization (plant). But should they be treated as such 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 assignment of a structural unit to its separate subdivisions is the right of this organization. However, if a structural subdivision that is located outside the location of the organization (a necessary attribute of a separate subdivision) is classified by the organization as separate subdivisions, it must be named in the constituent documents of the organization.

When applying the norm established by subparagraph "c" of paragraph 1 of Art. 5 of Law N 129-FZ, the following questions arise.

How are the permanent executive bodies of a legal entity determined?

In part one of the Civil Code of the Russian Federation, the concept of "executive bodies of a legal entity" is used in articles devoted to the management of only three certain types of organizations (limited liability companies, joint-stock companies, production cooperatives).

Limited Liability Company. Created in a limited liability company executive agency[collegiate and (or) sole], carrying out the current management of its activities and accountable to the general meeting of its participants. The sole management body of the company may also be elected not from among its participants (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, a collegial and (or) sole executive body can act as the executive body of a limited liability company. Consequently, two executive bodies (collegiate and sole) can function simultaneously in one company.

Where is information about the executive bodies of a limited liability company?

The constituent documents of a limited liability company must contain, in addition to those specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the following information: conditions on the size authorized capital society; the size of the share of each participant; the size, composition, terms and procedure for making contributions by participants; responsibility of participants for violation of obligations to make contributions; the composition and competence of the management bodies of the company and the procedure for making decisions by them, including decisions taken unanimously or by a qualified majority of votes; other information provided for by the law on limited liability companies (clause 2, article 89 of the Civil Code of the Russian Federation).

Thus, information about the executive bodies of a limited liability company is given in its constituent documents.

Joint-stock company. 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 management bodies of a joint-stock company, as well as the procedure for their decision-making and speaking on behalf of the company, are determined in accordance with the Civil Code of the Russian Federation by 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 collegial executive body (board, directorate) [and (or) the sole executive body (director, general director)] or a commercial organization [or an individual entrepreneur (manager)], to which the powers of the executive body. Consequently, in one joint-stock company two executive bodies (collegiate and sole) can function simultaneously.

The charter of a joint-stock company must contain, in addition to those specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the following information: conditions on the categories of shares issued by the company, their nominal value and quantity; the size of the authorized capital of the company; shareholder rights; 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 (clause 3 of article 98 of the Civil Code of the Russian Federation).

Thus, information on the composition and competence of the governing bodies of a joint-stock company is contained in the charter of this company.

Production cooperative. The executive bodies of the production cooperative are the board and (or) its chairman, who 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. A member of a cooperative cannot simultaneously be a member of the supervisory board and a member of the board or chairman of the cooperative (clause 1, article 110 of the Civil Code of the Russian Federation).

The competence of the management bodies of the cooperative and the procedure for making decisions by them are established by law 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, two executive bodies [the board and (or) its chairman] can function simultaneously in one production cooperative.

Where is information about the executive bodies of the production cooperative?

The charter of the cooperative must contain, in addition to those specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the following information: conditions on the amount of share contributions of members of the cooperative; 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; 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; the procedure for distributing profits and losses of the cooperative; the amount and conditions of subsidiary liability of its members for the debts of the cooperative; the composition and competence of the management bodies of the cooperative and the procedure for their decision-making, including on issues, decisions on which are taken unanimously or by a qualified majority of votes (clause 2, article 108 of the Civil Code of the Russian Federation).

Thus, information about the executive bodies of a production cooperative is given in the charter of the cooperative.

At the same time, we draw the attention of the readers of the journal to the following.

The concept of "permanent executive body of a legal entity" is not defined in the Civil Code of the Russian Federation.

This concept is also absent in the relevant laws, that is, in the Federal Laws of 08.02.1998 N 14-FZ "On Limited Liability Companies", of 26.12.1995 N 208-FZ "On Joint-Stock Companies" and of 08.05.1996 N 41- Federal Law "On production cooperatives".

At the same time, as mentioned earlier, in limited liability companies, joint-stock companies and cooperatives, the functioning of several executive bodies of a legal entity is allowed.

In this regard, there is a need to allocate a permanent executive body of a legal entity.

According to paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents.

The procedure for appointing or electing bodies of a legal entity is established by law and constituent documents.

This may mean that if the procedure for referring the executive body of a legal entity to its permanent executive bodies is not defined by law, then the organization itself has the right to establish this procedure in the constituent documents.

If the procedure for appointing or electing a permanent executive body (it can be only one) is not defined (neither by law, nor by constituent documents), then on the basis of subparagraph "c" of paragraph 1 of Art. 5 of Law N 129-FZ, the address (location) of an organization means the address (location) of another body or person entitled to act on behalf of a legal entity without a power of attorney, at which communication with a legal entity is carried out.

What other bodies and persons have the right to act on behalf of a legal entity without a power of attorney?

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 on the basis of 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).

Thus, the Civil Code of the Russian Federation determines the persons and bodies whose location can be recognized as the location of the organization.

When applying the norm established by subparagraph "n" of paragraph 1 of Art. 5 of Law N 129-FZ, the question arises related to the fact that this regulatory act does not establish a list of information contained in the unified state register about branches and representative offices of a legal entity. Does the above information include information about the location of branches and representative offices of a legal entity? It does not follow from the provisions of Law N 129-FZ that this information is mandatory.

Thus, there may be cases in which the unified state register 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 the name of the legal entity, its location, the procedure for managing the activities of the legal entity, and also contain other information provided for by law for legal entities of the corresponding type.

At the same time, paragraph 3 of Art. 52 of the Civil Code of the Russian Federation provides that changes made to the constituent documents become effective for third parties from the moment of state registration of these changes, and in cases established by law, from the moment the body responsible for state registration is notified of such changes. However, legal entities and their founders (participants) do not have the right to refer to the absence of registration of such changes in relations with third parties acting subject to these changes.

Thus, if the law for legal entities of the corresponding type does not provide for the mandatory presence in the constituent documents of a legal entity of information about the location of its branches and representative offices, the organization has the right not to provide this information in its constituent documents.

An indication of the need to reflect in the constituent documents of the organization information about the location of the organization (as opposed to information about the addresses of separate subdivisions) is also contained in Art. 54 of the Civil Code of the Russian Federation, according to paragraph 3 of which the name and location of a legal entity are indicated in its constituent documents.

Consequently, in some cases, even in the constituent documents of the organization, the addresses of separate divisions of the organization may not be indicated.

In passing, another question arises.

What are the founding documents of a legal entity?

Paragraph 1 of Art. 52 of the Civil Code of the Russian Federation provides that a legal entity acts on the basis of a charter, or a constituent agreement and a charter, or only a constituent agreement. In cases provided for by law, a legal entity that is not commercial organization, may act on the basis of the general provision 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 a charter approved by this founder.

Thus, information about the location of separate subdivisions can be given in the above documents.

All of the above refers to the concept of "separate subdivision" used in civil law.

3. Definition of the concept of "separate subdivision" in the tax legislation

According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation for the purposes of this Code, in particular, the following concept is used, according to which a separate subdivision of an organization is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. The recognition of a separate subdivision of the organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the above subdivision. At the same time, the workplace is considered stationary if it is created for a period of more than one month.

In addition, in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation defines the concept of "location of a separate subdivision of a Russian organization" (the place where this organization carries out activities through its separate subdivision).

Thus, according to the Tax Code of the Russian Federation, a separate subdivision of an organization is understood as any subdivision that is territorially isolated 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 does not mean the place where stationary workplaces are equipped, but 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.

The concept of "territorial isolation of a subdivision" is not established either in the Tax Code of the Russian Federation or the Civil Code of the Russian Federation.

First of all, it is necessary to define what is meant by the concept of "territorial isolation".

The explanatory dictionary of the Russian language gives definitions to the corresponding words and gives examples of their use:

Territory - limited land space (factory territory);

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

In this case, the space is 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).

Thus, space can be defined as a place that is not limited (first definition) or limited by visible limits (second definition).

We should use the second definition of space, because when we define territory, we are talking about a limited space.

Therefore, we can conclude that, according to the Tax Code of the Russian Federation, an 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), then these shops cannot be recognized as separate divisions of the organization. However, if another part of the workshops of the plant is located on a different (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.

At the same time, we draw the attention of the readers of the journal to the following. In Chapter 25 of the Tax Code of the Russian Federation, in addition to the concept of "territory", the concept of "water area" is used.

So, in accordance with paragraph 3 of Art. 261 of the Tax Code of the Russian Federation, the procedure provided for by the above paragraph of Art. 261 of the Code, applies to 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).

In accordance with paragraph 4 of Art. 308 of the Tax Code of the Russian Federation, the continuation or resumption after a break of work at a construction site after signing the act specified in paragraph 3 of the above article of the Code, 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 the territory (water area) of resumed works is the territory (water area) of previously stopped works or is closely adjacent to it.

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

So, in the case of the development of natural resources (for example, in oil production), we can talk about both areas of the territory and areas of the water area.

According to the above explanatory dictionary, the water area is the surface of a body of water, a reservoir; water area (port water area, world ocean water area).

Thus, Chapter 25 of the Tax Code of the Russian Federation deals with both land and water areas, and, consequently, territorial and water area 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 not established by the Tax Code of the Russian Federation the concepts of "workplace" and "equipped workplace" contained in the definition of a separate division of the organization.

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 this Code 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.

The concept of "workplace" is associated with labor relations.

According to Art. 5 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation), the regulation of labor relations and other relations directly related to them in accordance with the Constitution of the Russian Federation, federal constitutional laws is carried out by labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law norms, namely:

Other federal laws;

Decrees of the President of the Russian Federation;

Decrees of the Government of the Russian Federation and regulatory legal acts of federal executive bodies;

Constitutions (charters), laws and other regulatory legal acts of the subjects of the Russian Federation;

Acts of local governments and local regulations containing labor law norms.

The norms of labor law contained in other laws must comply with the Labor Code of the Russian Federation.

This means that the concept of "workplace" used in the Tax Code of the Russian Federation is used in the sense in which it is used in labor legislation.

Article 209 of the Labor Code of the Russian Federation establishes that a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

Thus, the concept of "workplace" is not associated with the presence of any property (including depreciable property) necessary, in particular, for work. At the same time, we draw the attention of the readers of the magazine to the fact that the Labor Code of the Russian Federation does not specify what exactly is meant by the control of the employer.

What is meant by equipped workstations?

The answer to this question is relevant, in particular, when determining the date of creation of the workplace, for example, if an organization rents production room.

According to Art. 22 of the Labor Code of the Russian Federation, the employer is obliged, among other things, 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 employees to meet 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, facilities, machines, technological equipment, equipment, tools, technical documentation and other means necessary for the performance of their labor duties.

The concept of "separate subdivision of the organization" is 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 of the Tax Code of the Russian Federation, taxpayers, which include separate divisions that carry out activities related to the use of facilities of service industries and farms, determine the tax base for the above activities separately from the tax base for other types of activities.

In doing so, we note the following. According to paragraph 25 of Art. 1 of the Federal Law of 06.06.2005 N 58-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Certain Other Legislative Acts of the Russian Federation on Taxes and Fees" in part one of Art. 275.1 of the Tax Code of the Russian Federation, the word "isolated" is excluded.

4. The main differences between the concept of "separate subdivision" in civil and tax legislation

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 must be located outside its location.

The difference between the above divisions from each other lies in the range of tasks they perform. The branch performs the functions of a legal entity, which should be understood as the types of production and other activities of a legal entity 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 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.

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 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.

According to the current tax legislation, branches and representative offices are not independent payers of taxes and (or) fees. At the same time, in the manner prescribed by the Tax Code of the Russian Federation, branches and representative offices fulfill the obligations of the organization that created them to pay taxes and fees at the location of these branches and representative offices (according to part two of Article 19 of the Tax Code of the Russian Federation in the manner prescribed by this Code, branches and other separate subdivisions of Russian organizations perform the duties of these organizations for the payment of taxes and fees at the location of these branches and other separate subdivisions).

In accordance with the requirements of the Civil Code of the Russian Federation, the head of a branch and the head of a representative office are appointed by the body of a legal entity authorized to do so in accordance with its constituent documents. The above requirement for subdivisions that are separate in accordance with the Tax Code of the Russian Federation is absent.

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 tax purposes, the differences in the legal regime of a representative office and a branch are irrelevant.

In accordance with the Civil Code of the Russian Federation, information on 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 can be concluded that all units that are separate in accordance with civil law are also recognized as separate for tax purposes. However, not every subdivision recognized as separate in accordance with tax legislation is such in accordance with civil law.

5. Payment of income tax by taxpayers with separate subdivisions

Features of the payment of income tax by taxpayers with separate subdivisions are established by Art. 288 of the Tax Code of the Russian Federation (clause 3 of article 287 of this Code).

Payment of advance payments, as well as amounts of income tax 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 subdivisions, defined as the arithmetic average of the specific gravity average headcount employees (labor costs) and the share of the residual value of the depreciable property of this separate subdivision, respectively, in the average number of employees (labor costs) and the residual value of the depreciable property, determined in accordance with paragraph 1 of Art. 257 of the Tax Code of the Russian Federation, in general for the taxpayer (clause 2 of article 288 of this Code).

According to paragraph 1 of Art. 289 of the Tax Code of the Russian Federation, taxpayers, regardless of whether they have an obligation to pay tax and (or) advance tax payments, the specifics of calculating and paying tax, are obliged, after the expiration of each reporting and tax period, to submit to the tax authorities at their location and the location of each separate subdivision the relevant tax declarations in the manner prescribed by the above article of the Code.

For the purposes of Chapter 25 of the Tax Code of the Russian Federation, a permanent establishment of a foreign organization in the Russian Federation means a branch, representative office, department, bureau, office, agency, any other separate subdivision or other place of activity of this organization through which the organization regularly carries out business activities in the territory of the Russian Federation, related:

With the use of subsoil and (or) the use of other natural resources;

With the performance of works stipulated by the contracts for the construction, installation, installation, assembly, adjustment, maintenance and operation of equipment, including slot machines;

With the sale of goods from warehouses located on the territory of the Russian Federation and owned by this organization or leased by it;

With the implementation of other works, the provision of services, the conduct of other activities, with the exception of the provisions of paragraph 4 of Art. 306 of the Code (clause 2 of article 306 of the Tax Code of the Russian Federation).

When applying the concept of "separate subdivision of the organization" for the purposes of taxation of profits, in particular, the following questions arise.

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 corresponding labor relations between the employee of this subdivision and the employer arose later)?

In the definition of a separate division of the organization, the noun "subdivision" is used in the singular, and "place" in the plural, that is, 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 understanding this definition. Therefore, the taxpayer should be prepared for the fact that the tax authority will not agree with this position, referring not to the letter, but to the spirit of the law.

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 this workshop as a separate subdivision, since jobs have not yet been created in it (employees have not been hired). who should take these places).

Another thing is if workers are already hired and should arrive at this shop for work, but have not yet arrived. In this case, the workshop can be considered as a separate division of the organization.

6. Responsibility of legal entities and individual entrepreneurs for violation of civil and tax laws due to failure to provide information on the creation of a separate subdivision

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 N 129-FZ.

For non-submission or untimely submission of information necessary for inclusion in state registers, as well as for submission of false information, applicants, legal entities and (or) individual entrepreneurs bear the responsibility established by the legislation of the Russian Federation (clause 1, article 25 of Law N 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 N 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, the tax authorities exercise a special form of tax control over the activities of the organization through its separate divisions.

Taxpayers are subject to registration with the tax authorities, respectively, at the location of the organization, the location of its separate subdivisions, the place of residence individual, as well as at the location of their real estate and Vehicle and on other grounds provided for by the Tax Code of the Russian Federation.

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).

Registration with the tax authority of organizations and individual entrepreneurs as a taxpayer is carried out regardless of the presence of circumstances with which the Tax Code of the Russian Federation associates the emergence of an obligation to pay a particular tax (clause 2 of article 83 of the Tax Code of the Russian Federation).

When carrying out activities in the Russian Federation through a separate subdivision, an application for registration of an organization at the location of a separate subdivision is submitted within one month after the creation of a separate subdivision (clause 4, article 83 of the Tax Code of the Russian Federation).

According to paragraph 1 of Art. 116 of the Tax Code of the Russian Federation violation by the taxpayer of the established Art. 83 of this Code, the deadline for filing an application for registration with a tax authority in the absence of signs of a tax offense provided for in paragraph 2 of this article of the Tax Code of the Russian Federation, entails a fine in the amount of 5,000 rubles.

Violation by the taxpayer of the established Art. 83 of the Tax Code of the Russian Federation, the deadline for filing an application for registration with a tax authority for a period of more than 90 days entails a fine in the amount of 10,000 rubles. (Clause 2, Article 116 of the Tax Code of the Russian Federation).

Paragraph 1 of Art. 117 of the Tax Code of the Russian Federation establishes that the conduct of activities by an organization or an individual entrepreneur without registration with a tax authority entails a fine in the amount of 10% of the income received during the above time as a result of such activities, but not less than 20,000 rubles.

Conducting activities by an organization or individual entrepreneur without registration with a tax authority for more than three months entails a fine in the amount of 20% of income received during the period of activity without registration for more than 90 days (clause 2 of 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.

Thus, the Tax Code of the Russian Federation establishes liability associated with registration with the tax authority of an organization at the location of separate divisions of the organization.

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, in this case, to establish a complete list of units classified as separate units in accordance with Tax Code of the Russian Federation and taxable profits during the tax period?

According to paragraph 1 of Art. 289 of the Tax Code of the Russian Federation, taxpayers, regardless of whether they have an obligation to pay tax and (or) advance tax payments, the specifics of calculating and paying tax, are obliged, after the expiration of each reporting and tax period, to submit to the tax authorities at their location and the location of each separate subdivision the relevant tax declarations in the manner determined by the above article of the Code.

An organization that 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).

The tax authority at the location of the separate subdivisions of the organization submits an income tax return, the form of which is approved by order of the Ministry of Finance of Russia dated November 11, 2003 N BG-3-02 / 64 (hereinafter referred to as the declaration), including Title page(Sheet 01), subsection 1.1 and (or) subsection 1.2 of Section 1, as well as the calculation of the amount of tax payable at the location of this separate subdivision (relevant pages of Appendix No. 5a to Sheet 02).

Line 010 of Appendix N 5 to Sheet 02 "Calculation of the distribution of advance payments and income tax by an organization with separate divisions" indicates the number of separate divisions, and line 010 of Appendix N 5a to Sheet 02 "Calculation of the distribution of advance payments and income tax for separate subdivisions of the organization" of the declaration reflects the name of the separate subdivision.

In accordance with clause 7 of the Instruction, Appendix No. 5 to the declaration is filled in by the taxpayer as a whole for the organization and for the organization without separate divisions.

Annex No. 5a to the declaration is filled in by the taxpayer for each separate division; the number of calculations depends on the number of separate divisions.

Column 5 of Appendix No. 5 to the declaration reflects data for the organization as a whole without separate divisions liquidated during the current tax period. This means that the taxpayer submits Appendix No. 5a for all separate subdivisions, including those liquidated during the current tax period.

Therefore, the data on lines 010 of all Appendix No. 5a to the declaration 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 a declaration at the location of separate subdivisions?

In accordance with paragraph 1 of Art. 119 of the Tax Code of the Russian Federation, failure to submit by the taxpayer within the period established by the legislation on taxes and fees tax return to the tax authority at the place of registration in the absence of signs of a tax offense provided for in paragraph 2 of the above article of the Code, entails a fine in the amount of 5% of the amount of tax payable (surcharge) on the basis of this declaration, for each full or incomplete month from the date, established for its submission, but not more than 30% of the above amount and not less than 100 rubles.

Failure by the taxpayer to submit a tax return to the tax authority for more than 180 days after the expiration of established by law on taxes of the deadline for submitting such a declaration, entails a penalty in the amount of 30% of the amount of tax payable on the basis of this declaration, and 10% of the amount of tax payable on the basis of this declaration, for each full or partial month starting from the 181st day (p. 2 article 119 of the Tax Code of the Russian Federation).

In passing, we note that paragraph 2 of Art. 119 of the Tax Code of the Russian Federation is subject to application in accordance with its constitutional and legal meaning, identified in the ruling of the Constitutional Court of the Russian Federation of July 10, 2003 N 316-O.

At the same time, we draw the special attention of the readers of the journal to the fact that if the declaration is not submitted in full at the location of the separate subdivision [for example, it contains the Title Page (Sheet 01), subsection 1.1 and (or) subsection 1.2 of Section 1, but Appendix No. 5a to Sheet 02 is not included], liability for such a violation is not provided.

This violation is qualified as a violation of the rules for drawing up a tax return, and before the entry into force of the relevant norm of the Federal Law of July 9, 1999 N 154-FZ "On Amendments and Additions to Part One of the Tax Code of the Russian Federation", 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 leading to an underestimation of the amount of taxes payable, entailed a fine of 5,000 rubles. (the above federal law Art. 121 of the Code is excluded).

We also note that in case of failure to submit a declaration at the location of a separate subdivision and, accordingly, non-payment of tax at the location of a separate subdivision, Art. 122 of the Tax Code of the Russian Federation, paragraph 1 of which 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% of the unpaid tax amounts.

The acts provided for in paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, committed intentionally, entail a fine in the amount of 40% of the unpaid tax amounts (clause 3 of article 122 of the Code).

Thus, the effect of Art. 122 of the Tax Code of the Russian Federation applies not only to cases of non-payment or incomplete payment of tax amounts as a result of understating the tax base, other incorrect calculation of tax, but also to cases of non-payment or incomplete payment of tax amounts as a result of other illegal actions (inaction).

The above illegal actions (inaction) may include failure to submit a declaration at the location of separate divisions of the organization (since it is mandatory in accordance with paragraph 1 of Article 289 of the Tax Code of the Russian Federation), as well as the associated non-payment of tax at the location of separate divisions of the organization ( since it is mandatory in accordance with paragraph 2 of article 288 of the Tax Code of the Russian Federation).

We draw the attention of the readers of the journal to the fact that when applying paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, the provisions of paragraph 2 of the ruling of the Constitutional Court of the Russian Federation dated 04.07.2002 N 202-O "On the complaint of the unitary state enterprise" Road Repair and Construction Department N 7 "on the violation of constitutional rights and freedoms by the provisions of paragraph 1 of Article 122 of the Tax Code of the Russian Federation”, according to which the question of the constitutionality of the provisions of tax legislation providing for the possibility of application by state bodies of punitive sanctions in the absence of the debtor’s fault, along with the collection of fines, has repeatedly been the subject of consideration by the Constitutional Court of the Russian Federation.

In the resolution of the Constitutional Court of the Russian Federation of December 17, 1996 N 20-P "On the case of checking the constitutionality of paragraphs 2 and 3 of the first part of Article 11 of the Law of the Russian Federation of June 24, 1993 "On federal tax police bodies" "it is 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 the tax that was not paid on time - a penalty as compensation for the losses of the state treasury as a result of the shortfall in receiving tax amounts on time.

Other types of measures, namely the collection of fines, 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 are subject to proof.

As follows from Art. 54 of the Constitution of the Russian Federation, an offense is a necessary basis for all types of legal liability. At the same time, the content of specific offenses in the public sphere must be consistent with the principles of the rule of law in its relationship 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 paragraph

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 division that has characteristic features 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 a statement to the tax office, at the address of the unit being opened, if the address of the tax service differs from that at which the head organization is registered.

In the event that several separate divisions 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 divisions on the territory of the department tax office 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 subdivision 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 in 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 parent company about the registration of a separate subdivision (form No. С-09-3-1)
4. Within 30 calendar days, register with the FPR and 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 quite simple 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.

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

You can get answers to any questions regarding the registration of an LLC and an individual entrepreneur using the service free consultation on business registration:

Sometimes the nature of the business allows it to conduct business from home or with the help of remote workers, but if the LLC opens a store, warehouse, office, production facility, or in some other way begins to conduct business at an address different from the legal address, then it is necessary to create and register a separate division.

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

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

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

Please note that individual entrepreneurs should not create and register separate divisions. Sole proprietors can operate throughout the territory of the Russian Federation, regardless of the place of state registration. If they work on the UTII regime or have bought a patent, they only have to additionally register with the tax authorities at the place of business.

What should be a separate subdivision in order for the organization to be eligible for the simplified tax system

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

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

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

• a representative office is a separate subdivision of a legal entity, located outside its location, which represents the interests of the 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 representative offices;
• representative offices and branches are not legal entities, and information about them must be indicated in the Unified State Register of Legal Entities, and therefore in the charter of the organization.

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

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

Signs of a branch and representative office

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

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

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

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

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

Thus, when creating a separate subdivision (not being a branch or representative office), an LLC must:

• report this to your tax office, approved by order of the Federal Tax Service of Russia dated 09.06.2011 No. ММВ-7-6 / [email protected];
• register with the tax authorities at the location of this subdivision, if it is established in the territory under the jurisdiction of a different tax inspectorate in which the head office is registered.

The tax inspectorate at the place of registration of the head office, to which notification No. С-09-3-1 was submitted, she herself reports this fact to the Federal Tax Service at the location of the created separate subdivision(Article 83(4) of the Tax Code of the Russian Federation), that is, an LLC is not required to register independently.

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

When changing the address of a separate subdivision, it is not necessary to close and reopen it (such an obligation existed until September 2010), but only submit a message to the tax office at the place of registration of the subdivision indicating the new address.

Registration in funds

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

To register with the FSS, notarized copies are submitted:

• tax registration certificates;
• certificate of state registration of a legal entity or a record sheet of the Unified State Register of Legal Entities;
• notification of registration as an insurer of the parent organization, issued by the regional branch of the FSS;
• information letter of the state statistics service (Rosstat);
• notifications of tax registration of a separate subdivision;
• the opening order, the Regulations on a separate subdivision, documents confirming that the separate subdivision has a separate balance sheet and current account;
• original .

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

Responsibility for violation of the procedure for registration of a separate subdivision

Violation of the deadlines for filing messages and applications for registration of a separate subdivision entails the following penalties:

• violation of the deadline for filing an application for registration - 10 thousand rubles (Article 116 of the Tax Code of the Russian Federation);
• conducting activities by a separate subdivision without registration - a fine in the amount of 10 percent of the income received as a result of such activities, but not less than 40 thousand rubles (Article 116 of the Tax Code of the Russian Federation);
• violation of the registration period with the FSS - 5 thousand rubles or 10 thousand rubles if the violation lasts more than 90 calendar days (Article 19 No. 125-FZ of 07/24/98).

Action plan when creating a separate subdivision

1. Determine that the organization creates a separate division that is not a branch or representative office (because they have a different registration procedure).
2. Make sure that the created workplace is stationary, that is, created for a period of more than a month, the employee is constantly present at it, and this is due to the performance of his official duties. If the employee is remote, it is not required to create a separate division.
3. Within a month after the creation of a stationary workplace, inform the tax office where the LLC is registered about the creation of a separate subdivision in the form No. C-09-3-1.
4. Register with the Social Security Fund within 30 days.
5. If necessary, notify within three days of a change in the address or name of a separate subdivision to the Federal Tax Service at the place of registration of the subdivision in the form No. C-09-3-1.

You will find answers to frequently asked questions about separate divisions in our material. What is a separate subdivision, what taxes are paid by branches and representative offices, how to register a separate subdivision, how separate subdivisions pay taxes, you will find answers to these and many other questions here.

What is a separate division

Civil Code (Article 55 of the Civil Code of the Russian Federation)
Separate subdivisions of the organization are representative offices and branches.

Representative offices are a separate subdivision that are created to represent the interests of the organization and protect them. A branch is a separate subdivision created to carry out the functions of the organization and represent its interests.

Separate divisions(hereinafter referred to as OP) are not independent legal entities, are endowed with the property of the parent organization and act within the framework and on the basis of the provisions approved by the head of the parent organization.
The organization creating the OP must include information about them in the constituent documents.

Tax Code (Article 11 of the Tax Code of the Russian Federation)
According to tax code Separate subdivisions include subdivisions of the organization that correspond to the following characteristics:

Territorial isolation Availability of equipped stationary workplaces

According to the Tax Code of the Russian Federation, a subdivision of an organization is recognized as separate, regardless of the availability of information in the constituent documents.
Thus, the tax legislation contains the concept of "separate subdivisions" (hereinafter - OP), without making a distinction between a representative office and a branch.
At the same time, it does not matter that the organization's charter does not contain information about separate subdivisions, if they are created by the organization, then they have obligations to pay taxes and submit reports.

What is the location of a separate subdivision

The location of the EP is the place where the parent organization operates through its separate division.

Territorial isolation of the OP

Territorially isolated is a subdivision that is located in a territory different from the territory of the location of the parent organization. In other words, the unit must be located at an address that is not listed in the founding documents of the organization as a location. At the same time, the Ministry of Finance, in a letter dated 22.12.2004 No. 03-03-1-04 / 1/184, explained that the territorially separate unit should be considered the one that is located on the territory in which tax control is carried out by another tax inspectorate.

What workplace is considered stationary (Article 209 of the Labor Code of the Russian Federation)

A workplace created for a period of more than one month is considered stationary. An equipped place is a place in which all conditions are created so that the employee can fulfill his labor obligations.
At the same time, the place where the employee works must be under the control of the organization, i.e. must be a lease agreement, or be the property of the organization.

Notification of the creation, changes, closure of a separate subdivision (clause 2, clause 3 of article 23 of the Tax Code of the Russian Federation)

A legal entity is obliged to submit information on the creation of separate subdivisions (with the exception of branches and representative offices) to the tax office at its location. In case of any changes in the information about the EP previously submitted to the IFTS, the organization is also obliged to inform the IFTS:

Not later than one month from the date of creation of the EP Not later than three days from the date of change of information about the EP

When terminating activities through a separate subdivision (closing an OP), a legal entity is obliged to submit information to its tax office

Not later than three days from the date of termination of activities through the OP

Registration of a separate subdivision (clause 1, article 83 of the Tax Code of the Russian Federation)

If a subdivision of an organization is created on the territory that belongs to the tax inspectorate, in which the legal entity is already a member, then in this case such a subdivision does not need to be registered with the Federal Tax Service Inspectorate (clause 4 of article 83 of the Tax Code of the Russian Federation).
In all other cases, the organization is obliged to register each separate subdivision with the tax office at its location.
Within one month from the date of creation of the OP, a corresponding application is submitted to the territorial inspection. Properly certified copies of the certificate of registration of the parent organization and documents confirming the creation of the EP are attached to the application.
The Tax Inspectorate within five days carries out registration of a separate division of the organization.

Responsibility for non-registration of the OP (Art. 116, Art. 117 of the Tax Code of the Russian Federation, Art. 15.3 of the Code of Administrative Offenses of the Russian Federation)

Violation	Tax Liability			Administrative responsibility
	term
	up to 90 days	more than 90 days
Deadline for filing an application for registration			500 - 1000 rubles.
Carrying out activities without registration	10% of income, but not less than 20,000 rubles.	20% of income, but not less than 40,000 rubles.	2,000 - 3,000 rubles

If a separate subdivision changes the address of its location, the parent organization is obliged to register the closure of the OP, i.e. remove it from the register with the tax office, and re-register it with the tax office located at the new address. This is due to the fact that the legislation does not contain a rule establishing the procedure for accounting for changes associated with a change in the location of separate subdivisions.

Registration of a separate subdivision of funds

RF Pension Fund

Registration in the FIU is subject to those units that have a dedicated balance, current account, accrue wages employees.
Registration in the Pension Fund is carried out on the basis of information from the Unified State Register of Legal Entities. The tax authority, within 5 days from the date of receipt of information about the creation of a separate subdivision, transfers information to the FIU at the location of the OP. The Pension Fund sends the policyholder a notice in two copies, one of which must be transferred to the Pension Fund at the location of the organization within 10 days.

Social Insurance Fund

Just like in the FIU, the FSS registers OPs with a balance sheet, a bank account and making payments in favor of employees.
Registration is carried out in the territorial branch of the FSS, at the place of operation of the OP.
The organization, within 30 days from the date of creation of the unit, is obliged to submit to the FSS an application and copies of the following documents:

Certificate of state registration; Certificate of registration with the IFTS; Notification of registration with the IFTS at the location of the OP on registration with the FSS of the parent organization An information letter from statistics A certificate from the bank on current accounts, if they are open at the time of application.