The concept of "separate unit" for tax purposes. What is a separate division

The tax authorities are trying to fit under the concept of "separate subdivision" any activity of the company. Let's take a closer look at what is a separate unit and what is not. And also, when you need to register, and what a fine for violations threatens.

What is a separate division

concept "separate unit" organization is given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. So, 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 workplace is considered stationary if it is created for a period of more than one month.

From this definition, it can be concluded that component An organization is recognized as its separate subdivision in the presence of the following features:

• territorial location outside the location of the organization. That is, the address of the structural unit must be different from the address of the organization specified in the constituent documents;
• equipment at the location of a separate subdivision of workplaces for a period of more than one month.

The concept of a workplace in the tax legislation is absent. Therefore, the definition given in other branches of legislation should be used. This is stated in paragraph 1 of Article 11 of the Tax Code of the Russian Federation.

The concept of a workplace is contained in Article 209 Labor Code. This is the place where the worker must be or to which he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

In practice, the question sometimes arises whether it is possible to speak of a separate subdivision if the organization has equipped workplaces for "foreign" workers. For example, an organization has built a building and equipped it with office rooms for rent.

It follows from the above definition that workplace is directly related to the employee who has entered into an employment contract with the employer who created this job.

Articles 15 and 16 of the Labor Code of the Russian Federation state that an employee and an employer are persons who, on the basis of an employment contract concluded between them, have entered into an employment relationship. In other words, only the organization with which the employee has concluded an employment contract can be an employer.

Hence the conclusion follows: stationary jobs, which are referred to in paragraph 2 of Article 11 of the Tax Code of the Russian Federation, are jobs created for a period of more than one month, equipped with an organization for their workers. That is, at the location of a separate subdivision, the employees of the organization must perform their labor duties. Equipping workplaces for employees of another organization does not lead to the formation of a separate subdivision.

The conclusion made is also confirmed by the definition of the location given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. separate subdivision. Such is the place where the organization carries out activities through its separate subdivision.

Conducting activities by the organization through a separate subdivision in the absence of employees of the organization at its location is impossible.

Example 1

LLC "Condor" is registered in Tver. The company acquired an office in Moscow and leased it out. Only employees of the tenant work in the office.

In this case, Condor does not have a separate division in Moscow.

Consider the case when an organization rents jobs created by another organization for its employees outside its location. In this situation, there is a basis for attributing these jobs to an integral part of the tenant organization. Thus, the organization will have to recognize the emergence of a separate unit.

But what if individuals work outside the location of the organization with whom the organization has drawn up not labor, but civil law contracts (for example, a work contract or a service contract)? In this case, for the purposes of the Tax Code of the Russian Federation, one cannot speak of the creation of a separate subdivision. There are no labor relations with individuals, which means that they cannot be called employees.

However, be careful: civil law contracts often hide ordinary labor relations. Therefore, such contracts are the object of close attention during the inspections carried out by the labor inspectorate.

If it is proved that the civil law contract was concluded only for the purpose of “masking” labor relations, a fine cannot be avoided. Tax authorities may also file claims related to tax registration, payment of taxes and reporting at the location of such a separate subdivision.

The following question is often asked: what if only one job has been created? A literal interpretation of the definition given in Article 11 of the Tax Code of the Russian Federation may lead to the conclusion that in order to recognize a separate subdivision, it is necessary to have at least two jobs. After all, the definition says that at the location of a separate subdivision, it is necessary to have stationary jobs.

However, this does not mean that the above provision of the Code requires the presence of two or more jobs. The condition for the creation of stationary workplaces, established by Article 11 of the Code, will be met even if only one workplace is equipped.

As a result, if only one workplace has been created in a territorially separate structural unit, such a unit is considered to be created for tax purposes. For example, at the location of currency exchange offices, as a rule, one workplace is created. At the same time, banks recognize these exchange offices as separate units.

Example 2

Atlant LLC is registered in Omsk. The company acquired in the Tomsk region industrial premises unusable and requiring overhaul. For the protection of the object during the repair, a security guard was hired under an employment contract.

In this case, despite the fact that only one stationary workplace has been created, Atlant has a separate division in the Tomsk region.

When creating a separate division, the company issues such an order.

Branches, representative offices and separate divisions: what is the connection?

If you carefully read the definition of the concept given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation "separate divisions", you can see one interesting detail. It is defined through the concept of "territorially isolated from the organization of the unit." The latter should be interpreted in the sense in which it is used in other branches of law (clause 1, article 11 of the Code).

According to Article 55 of the Civil Code of the Russian Federation, separate subdivisions of a legal entity located outside its location (that is, territorially separate subdivisions) can exist in two forms - branches or representative offices.

Branches and representative offices operate on the basis of approved regulations and must be indicated in the organization's constituent documents (clause 3, article 55 of the Civil Code of the Russian Federation).

At the same time, while distinguishing only two types of separate subdivisions of a legal entity, the Civil Code of the Russian Federation does not restrict a legal entity in creating separate subdivisions of other types. Thus, the Civil Code of the Russian Federation does not impose on a legal entity that has created separate subdivisions in other forms than a branch and a representative office the obligation to indicate information about them in the constituent documents.

The Tax Code establishes an additional criterion - the creation of stationary jobs. If the criterion is met, the branch or representative office is recognized as a separate subdivision in terms of tax legislation.

The creation of branches and representative offices is almost always associated with the equipment of stationary workplaces. Thus, in the overwhelming majority of cases, branches and representative offices are separate subdivisions for tax purposes. But the opposite is not true: separate divisions are not only branches and representative offices.

Separate subdivision is considered to be created regardless of the implementation of the registration procedure provided for in paragraph 3 of Article 55 of the Civil Code of the Russian Federation for branches and representative offices. This is stated in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. In particular, in order to be considered created, a separate subdivision does not have to be indicated in the constituent documents.

Thus, a separate subdivision, in order to be recognized as such from the point of view of tax legislation, must have the features established by paragraph 2 of Article 11 of the Code. It can be created both in the form of a representative office or branch, or in another form that does not contradict the legislation of the Russian Federation.

Example 3

Let's use the conditions of example 1. Suppose that Condor LLC opened a representative office at the location of the acquired office. It employs community workers.

In this case, Condor has a separate division in Moscow.

A separate division has been created: what to do next?

The creation of a separate unit requires the organization to fulfill certain responsibilities. In particular, it must be registered with the tax authority at the location of each separate subdivision. This requirement is enshrined in paragraph 1 of Article 83 of the Tax Code of the Russian Federation. An application for registration is submitted within a month after the creation of a separate subdivision.

When is a unit considered created? When stationary workplaces are equipped in it. Such a date may be, for example, the day when the employee began his labor duties at the location of the unit.

As you know, in addition to registering at the location of separate subdivisions, the organization must register with the tax inspectorates at the location of its real estate and Vehicle subject to taxation. Therefore, if the organization is already registered with the tax office at the location of the separate subdivision, it is not necessary to re-register.

The liquidation of units should be reported in the same way. An organization may be registered with several tax inspectorates. In this case, she must inform all tax inspectorates where she is registered about the creation of a separate subdivision.

Example 4

CJSC Topol is registered in Moscow and is registered only with the Moscow Tax Inspectorate. In 2013, it acquired a store in St. Petersburg and leased it out. Since real estate was acquired, the company entered tax records in St. Petersburg. On January 1, 2014, CJSC terminated the lease agreement and decided to carry out trading activities independently. For this, workers were recruited into the store.

In this case, a separate subdivision is considered to be created from January 1, 2014. However, the organization is not required to re-register for tax purposes in St. Petersburg. It should only inform the tax inspectorates in Moscow and St. Petersburg about the creation of a separate division.

Sanctions for violations

If an organization files an application for tax registration at the location of a separate subdivision in violation of the one-month period allotted for this, it will face a fine. If the organization is late in submitting the application, then it faces a fine of 10,000 rubles. This is stated in article 116 of the Tax Code of the Russian Federation.

If the organization not only delays filing an application, but also starts operating at the location of a separate subdivision, liability will arise in accordance with paragraph 2 of Article 116 of the Code. The fine will be calculated as a share of the income received as a result of conducting such activities (10%). The minimum fine is 40,000 rubles.

Sanctions threaten not only the organization, but also its officials who committed the listed violations. For delay in filing an application, a fine of 500 to 1000 rubles is charged, and if at that time a separate subdivision was operating, from 2000 to 3000 rubles. This is stated in Article 15.3 of the Code of Administrative Offenses of the Russian Federation.

Finally, do not forget that at the location of separate subdivisions, you need to pay some taxes and submit reports. An organization that violates these responsibilities risks facing serious problems:

• Firstly, she can be held liable under Article 119 of the Tax Code of the Russian Federation for failure to submit a tax return.
• Secondly, under Article 122 of the Code for non-payment or incomplete payment of tax.
• Thirdly, at the location of a separate subdivision, an arrears are formed, on which penalties will be charged.

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

Structural territorially isolated subdivision of the organization

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

One of the differences between such actions lies in the information that is entered in the Unified State Register of Legal Entities (EGRLE): on the creation of a company in the course of reorganization, it is entered new entry, and about a separate subdivision, the tax authorities make notes in the lines reserved for information about the parent organization. From this, the subordinate position of the subdivisions is obvious. It is also underlined by law. In Art. 55 of the Civil Code of the Russian Federation states that separate subdivisions are not legal entities, although they have a number of individualizing features.

The list of required features is short:

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

According to an internal decision, a part of the company may be endowed with other distinguishing features. For example, these signs can be:

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

The legal status of the selected parts of the company in business and labor relations

The legal status of a separate subdivision follows from its dependent status:

1. The rights of the selected part of the company are significantly limited in comparison with the functionality of the parent organization.
   For example, although the Supreme Arbitration Court has already been disbanded, the rule established by it in the information letter dated May 14, 1998 No. 34 remains in force: separate divisions have the right to file claims with the court only if they act on behalf of the organization. And, as indicated in the appeal ruling of the Tyumen Regional Court dated 06/04/2012 No. 33-2442 / 2012, separate divisions are not recognized as a proper defendant, although Art. 29 Code of Civil Procedure of the Russian Federation and allows filing a claim in court at their location.
2. The activities of separate divisions are the same work that the company performs in accordance with the type codes assigned to it economic activity, as well as the activities of employees (secretaries, lawyers, accountants, etc.) to create conditions for the performance of such work, or only part of such activities. Granting separate subdivisions the authority to carry out established species activity is carried out by a legal entity.
3. Separate subdivisions are intermediaries in labor relations, and not their parties. So, in the ruling of the Supreme Court dated 03.11.2006 No. 5-B06-94, it is stated that the separated part of the company is not endowed with the legal capacity of a legal entity, and therefore separate divisions cannot act as employers.

If a worker is sent to work in a separate subdivision, then this qualifies as sending on a business trip (see the regulation on the specifics of sending on business trips, approved by Government Decree No. 749 of October 13, 2008).

Types of separate divisions according to the Civil Code and Tax Code of the Russian Federation

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

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

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

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

What does it mean to recognize a separate subdivision as such for the purposes of tax accounting

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

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

As stated in Art. 11 of the Tax Code of the Russian Federation, recognition of a separate subdivision as such is carried out in order to comply with the legislation on taxes and fees.

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

The procedure for creating a separate division

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

1. Adoption of a decision on the separation of a part of the company in accordance with the procedure established by law or internal acts of the company.

For example, the law "On companies with limited liability» No. 14-FZ dated 08.02.1998 defines the following decision-making procedure:

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

In Art. 65 of the law "On joint-stock companies» dated 12/26/1995 No. 208-FZ states that the creation of branches and representative offices may fall within the competence of the board of directors, if this is provided for by the charter of the company.

1. Adoption of a local act regulating the work of a separate division of the company. Usually this is a provision on a branch / representative office.
2. Appointment by order of the head of the parent organization of the leadership of a separate subdivision. Usually, a power of attorney is issued in the name of the head of the department at the same time, since without it the head will not be able to manage the department of the company (Article 55 of the Civil Code of the Russian Federation).
3. Submission to the Federal Tax Service of an application in the form P14001, approved. by order of the Federal Tax Service "On approval of forms and requirements ..." dated January 25, 2012 No. ММВ-7-6 / [email protected], on entering information about the unit into the Unified State Register of Legal Entities. As stated in the letter of the Department of Tax Policy of the Ministry of Finance of the Russian Federation of December 16, 2009 No. 03-02-07 / 1-541, a separate subdivision of a legal entity is considered created from the moment amendments are made to the state register.
4. Submission to the Federal Tax Service of form C-09-3-1, approved. by order of the Federal Tax Service dated 09.06.2011 No. ММВ-7-6/ [email protected] within a month after the separation of a part of the organization. This is done to register a separate subdivision with the tax service.

Sample provision on a separate division of LLC, JSC

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

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

Reporting of separate divisions in 2017-2018

One of the manifestations of control over branches and representative offices by a legal entity and state bodies is the verification of reporting.

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

1. Tax returns, if the unit has a duty to:
   • pay transport tax and corporate property tax;
   • transfer the tax withheld from the earnings of employees to their income.
2. Form according to KND 1151111, approved. by order of the Federal Tax Service dated 10.10.2016 No. ММВ-7-11/ [email protected], on the payment of insurance premiums to the Federal Tax Service.
3. Form 4-FSS, approved. by order of the FSS dated September 26, 2016 No. 381, to report to the Social Insurance Fund on the payment of contributions for occupational injury risk insurance.
4. Form SZV-M, approved. Decree of the Board of the Pension Fund of the Russian Federation of February 1, 2016 No. 83p, for information pension fund on employee pension contributions.
5. Other Documents.

Internal reporting is determined in accordance with the instructions of the parent company. It includes the transfer of accounting documentation, information on the implementation of plans, etc., which means for a separate division of the organization the need to draw up additional reports in the forms established in the organization.

Let's summarize. detached structural subdivision a legal entity is a part of a company that is territorially and administratively separated in order to carry out activities similar to the direction of the parent company, and, if necessary, also represent its interests.

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

The norms of the current legislation of the Russian Federation allow companies to conduct their activities not only at their location, but also at a territorial distance from it.

In what cases it is necessary to register a branch, and in which - another separate subdivision, as well as how a branch differs from a separate subdivision, we will understand in this consultation. And at the same time we will answer the question: a separate subdivision is a branch or not.

Branches and separate divisions of the organization

A separate subdivision is any subdivision that is territorially remote from the location of the organization, in which stationary jobs have been created (that is, for a period of more than one month), regardless of whether the creation of such a subdivision is reflected in the constituent documents of the organization, and on the powers vested in it (Art. 11 of the Tax Code of the Russian Federation).

A separate subdivision may be a branch or representative office. However, the difference between a separate subdivision and a branch and representative office still exists (Article 55 of the Civil Code of the Russian Federation).

The difference between a branch and a separate subdivision is due to the fact that a branch is a separate subdivision of a legal entity located remotely from its location and performing the functions of the parent organization (or part of them), including the functions of a representative office. A representative office, in turn, is a separate subdivision of an organization located remotely from its location and representing the interests of a legal entity and protecting them. A simple separate subdivision (territorially remote and having stationary jobs), unlike a branch, is not entitled to perform the functions of a parent organization (Article 55 of the Civil Code of the Russian Federation).

In addition, the difference between a branch and a separate subdivision also lies in the fact that information about the branch must be indicated in the unified state register of legal entities. Information about a simple separate subdivision with stationary jobs does not need to be entered into the Unified State Register of Legal Entities (Article 55 of the Civil Code of the Russian Federation).

In other words, a separate subdivision is both a branch, a representative office, and an ordinary separate subdivision that does not have the status of a branch or representative office.

Branch or separate division: differences (table)

When making a choice between a separate subdivision or a branch, first of all, you need to understand exactly what functions will be assigned to this subdivision, whether it is planned to conduct independent accounting, whether the subdivision will have separate current accounts. For convenience, we present the main differences in the form of a table.

Branch, representative office, separate subdivision - differences:

№ p/p	A simple stand-alone subdivision with fixed workplaces	Branch	Representation
1	Unit Functions
	Worker leads labor activity at the workplace (Article 11 of the Tax Code of the Russian Federation).	Carries out all or part of the functions of the parent organization. Carries out the functions of a representative office (Article 55 of the Civil Code of the Russian Federation).	Represents and defends the interests of the organization itself (Article 55 of the Civil Code of the Russian Federation).
2	Possibility of conducting commercial activities by the division
	Can lead commercial activity through workplaces (Article 11 of the Tax Code of the Russian Federation, Article 55 of the Civil Code of the Russian Federation).	Can conduct commercial activities (Article 55 of the Civil Code of the Russian Federation).	Cannot conduct commercial activities (Article 55 of the Civil Code of the Russian Federation).
3	The need to notify the tax office about the creation of a unit
	Notify tax office within one month from the date of creation (subclause 3, clause 2, article 23 of the Tax Code of the Russian Federation, clause 4, article 83 of the Tax Code of the Russian Federation).	sub. 3 p. 2 art. 23 of the Tax Code of the Russian Federation, paragraph 3 of Art. 83 of the Tax Code of the Russian Federation), since information about the branch must be entered into the Unified State Register of Legal Entities.	The obligation to notify the tax inspectorate is not provided for (subclause 3, clause 2, article 23 of the Tax Code of the Russian Federation, clause 3, article 83 of the Tax Code of the Russian Federation), since information about the representative office must be entered in the Unified State Register of Legal Entities.
4	Reflection of information about the unit in the Unified State Register of Legal Entities
	Information is not indicated in the Unified State Register of Legal Entities (clause 4 of article 83 of the Tax Code of the Russian Federation).	Information is indicated in the Unified State Register of Legal Entities (clause 3 of article 55 of the Civil Code of the Russian Federation, clause 3 of article 83 of the Tax Code of the Russian Federation).	Information is indicated in the Unified State Register of Legal Entities (clause 3 of article 55 of the Civil Code of the Russian Federation, clause 3 of article 83 of the Tax Code of the Russian Federation).
5	The procedure for creating a division
	Order CEO(directors) (clause 1, article 5, subparagraph 4, clause 3, article 40 of the Law of February 8, 1998 N 14-FZ).	paragraph 1 of Art. 5 of the law of 08.02.1998 N 14-FZ, art. 5 of the Law of December 26, 1995 N 208-FZ).	The decision of the owner of the organization (clause 1, article 5 of the Law of February 8, 1998 N 14-FZ, article 5 of the law of December 26, 1995 N 208-FZ).
6	Possibility of independent accounting department
	Can maintain independent accounting, but financial statements for the organization as a whole should include performance indicators of all separate divisions (

Materials for the video seminar

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

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

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

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

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

- How and where to pay taxes and submit reports?

- Is one remote workplace considered a separate subdivision?

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

In accordance with Article 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization for the purposes of tax accounting is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. A separate subdivision of an organization is recognized as such regardless of whether or not its creation is reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified subdivision.

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

The second condition for recognizing a separate subdivision of an organization as such is the availability of equipped stationary workplaces at its location. At the same time, a workplace is considered stationary if it is created for a period of more than one month (in accordance with the provisions of Article 6.1 of the Tax Code of the Russian Federation, a month is a calendar month). Since the concept of a workplace is not contained in the Tax Code of the Russian Federation, let's turn to the Labor Code of the Russian Federation.

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

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

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

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

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

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

conducting activities by the organization through the relevant unit.

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

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

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

Representative offices and branches are not legal entities. They carry out their activities on behalf of the legal entity that created them, which is responsible for their activities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it. This property is assigned to the relevant branch or representative office, but is either owned by a legal entity or belongs to a legal entity on a different legal basis. In accounting, the above property is reflected simultaneously on the separate balance sheet of the branch or representative office, and on the balance sheet of the legal entity. In contrast, a division of an organization that is a separate division in accordance with the Tax Code of the Russian Federation may not have a separate balance sheet.

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

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

The difference between branches and representative offices lies in the range of tasks they perform. The branch performs the functions of a legal entity, which should be understood as the types of production and other activities of a legal entity that it has the right to engage in in accordance with the law and its constituent documents. The tasks of the representation are limited. They consist in representing and protecting the interests of a legal entity, i.e. in the functions performed within the framework of the institution of representation by virtue of an authority based on a power of attorney.

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

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

Oddly enough it sounds, but it is possible to create a separate unit unintentionally. And worst of all, such an “unintentional” creation of a separate subdivision can lead to negative consequences. In the article we will consider such cases, which will help our readers to avoid negative consequences.

A separate subdivision of an organization is any subdivision that is territorially separated from it, at the location of which stationary workplaces are equipped, while the workplace is considered created if it is created for a period of more than one month.

Moreover, the subdivision will be recognized as separate, regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified subdivision (clause 2, article 11 of the Tax Code of the Russian Federation).

When a separate division is considered created

A separate subdivision characterizes two features:

1. equipped workplaces created for a period of more than one month;
2. territorial isolation from the head unit.

Let's analyze these signs in more detail.

The first sign. The tax code does not contain the concept of a workplace, so it is worth referring to the Labor Code.

Workplace - 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 (Article 209 of the Labor Code of the Russian Federation).
For example, recently the so-called “virtual offices” have become increasingly popular, when employees of an organization work remotely, that is, at home, on home computers, etc. Accordingly, the employee's apartment, his home computer are not under the control of the employer, whether direct or indirect, and therefore the creation of a separate division does not occur.

In addition, the workplace must be created by the employing organization itself (rented premises or acquired ownership). For example, if a cleaning company sends a cleaner to the client's office for daily cleaning for a period of two months, then there will also be no separate unit. After all, if the premises or part of it does not belong to the employing organization, then the cleaner will be considered a seconded employee (166 of the Labor Code of the Russian Federation).

According to the Ministry of Finance, each case of the potential creation of a separate subdivision must be considered separately. Thus, the specialists of the financial department explained that in order to resolve the issue of the presence or absence of signs of a separate division of the organization, the essential terms of the contracts (rent, contract, provision of services or others) concluded between the organization and its counterparty, the nature of the relationship between the organization and its employees should be taken into account , as well as other actual circumstances of the organization's activities outside its location (letter of the Ministry of Finance of Russia dated February 18, 2010 N 03-02-07 / 1-67).

Among other things, workplaces must be equipped, that is, each workplace must be adapted to perform the function for which it was created.
Thus, we can conclude that the workplace must be equipped, created by the employer and be under his direct or indirect control.

Sign two. The Tax Code does not define territorial isolation. However, in our opinion, a subdivision will be considered territorially isolated if the address of its location differs from the address of the parent organization's location specified in the founding documents.

For reference: the location of a separate subdivision of an organization is the place where this organization carries out activities through its separate subdivision (clause 2, article 11 of the Tax Code of the Russian Federation).
Based on the foregoing, we can conclude that a separate subdivision will be considered open from the day the workplaces are equipped at an address different from the address of the organization's location.

Separate subdivision, branch, representative office

Civil law distinguishes two types of separate subdivisions: a branch and a representative office.
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 (clause 1, article 55 of the Civil Code of the Russian Federation).

The concept of "branch" is somewhat broader than the concept of "representation". 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 (clause 2, article 55 of the Civil Code of the Russian Federation).

The concept of "separate subdivision" is even broader and includes the concepts of "branch" and "representative office". Each branch or representative office is a separate subdivision, but not every separate subdivision is a branch or representative office.

In addition, the branch and representative office operate on the basis of relevant regulations approved by the parent organization and have managers. Information about representative offices and branches must be indicated in the constituent documents of the legal entity that created them (clause 3, article 55 of the Civil Code of the Russian Federation).

A separate unit does not have to have a leader. Also, there is no obligation for the parent organization to approve a special provision on a separate subdivision. And information about it is not required to be indicated in the constituent documents.

Please note that a representative office and a branch are not legal entities, respectively, they do not act as subjects of civil or tax legal relations (clause 3 of article 55 of the Civil Code of the Russian Federation). Also, a separate subdivision is not a legal entity and does not act as a subject of civil and tax legal relations. Branches, representative offices and other separate subdivisions of Russian organizations only fulfill the obligations of these organizations to pay taxes (Article 19 of the Tax Code of the Russian Federation).

Registration or notice?

A separate division has been created, what's next? And then, if the organization conducts business through this division, then it is obliged, within one month from the date of the creation of a separate division, to submit an application for registration to the tax authority at the location of this separate division (clause 4, article 83 of the Tax Code of the Russian Federation).

And if a separate subdivision is created, but no activity is carried out through it? If we interpret this norm literally, then while activities are not carried out through a separate subdivision, it is not necessary to apply for registration. However, if, for example, two months after the creation of a separate subdivision, the organization begins to conduct business through it, then it will need to be registered. It will be impossible to do this without violating the established deadline in the case under consideration. So right decision will apply for registration within a month from the date of creation of a separate subdivision, even if activities through it are not yet carried out.

In addition to filing an application for registration, the organization is obliged in all cases, within a month from the date of the creation of a separate subdivision, to report this to the tax authority at the location of the organization. The closure of a separate subdivision must also be reported to the tax authority within a month (subclause 3, clause 2, article 23 of the Tax Code of the Russian Federation). The message is submitted to the tax authority in the form N C-09-3, approved by order of the Federal Tax Service of Russia dated 21.04.2009 N MM-7-6 / [email protected](clause 7, article 23 of the Tax Code of the Russian Federation).

If the organization has created a separate subdivision on the territory of the municipality where the organization itself is located, then it is not necessary to re-register (clause 1, article 83 of the Tax Code of the Russian Federation). In this case, it will only be necessary to submit a notification about the opening of a separate subdivision in the manner prescribed by subparagraph 3 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation.

And if several separate divisions of the organization are located in the same municipality in the territories subordinate to different tax authorities, the registration of the organization can be carried out by the tax authority at the location of one of its separate divisions, determined by the organization independently (clause 4 of article 83 of the Tax Code of the Russian Federation) .

To do this, the organization must inform in writing which tax authority it has chosen for registration at the location of the separate subdivision. Moreover, you need to report to the tax authority that the organization has chosen for registration. This can be done using the recommended message form developed by the Federal Tax Service of Russia (KND N 1111051) (attachment to the order of the Federal Tax Service of Russia dated March 24, 2010 N MM-7-6 / [email protected]).

"Legal" and "actual" addresses

Now such a philistine concept as the legal address of an organization is quite common. Speaking of the legal address, they mean the address of the location of the organization.

The location of the organization is determined by the place of its state registration. And the state registration of an organization 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 organization without a power of attorney (clause 2, article 54 of the Civil Code of the Russian Federation).

In other words, the address of the location of the organization is the address that is indicated in the constituent documents.
Under the actual address understand the address where the organization is located and operates in fact.
According to some territorial tax authorities, the difference between a “legal” address and an “actual” address is, in fact, the creation of a separate subdivision. That is, they believe that the actual address is not the organization itself, but its separate subdivision.

In our opinion, this approach is wrong. A separate subdivision, first of all, should be territorially isolated from the parent organization. And in a situation where an organization operates at an address different from that indicated in the constituent documents, a separate subdivision is not created, since in this case there is no parent organization (there is no one at the “legal” address, and no activity is conducted there). That is, to recognize the creation of a separate subdivision, there must be a parent organization.
Nevertheless, in order to avoid unnecessary and unnecessary disputes with the tax authorities, we recommend that you make changes to the constituent documents by changing the information about the location of the organization.

What is the responsibility under?

There are two articles in the Tax Code of the Russian Federation related to registration.
Article 116 of the Tax Code of the Russian Federation provides for a fine of 5,000 rubles for violation of the deadline for filing an application for tax registration. If the deadline is violated by more than 90 days, then the fine will double and amount to 10,000 rubles.
We will immediately make a reservation that for failure to notify the tax authority of the creation or closure of a separate subdivision tax code liability has not been established.
Article 117 of the Tax Code of the Russian Federation provides for liability for conducting activities without registration with a tax authority.

Moreover, the sanctions under this article are much greater than the sanctions under Article 116 of the Tax Code of the Russian Federation. Thus, for the specified offense, Article 117 of the Tax Code of the Russian Federation provides for a fine in the amount of 10% of the income received from activities that were carried out without registration with the tax authority, but not less than 20,000 rubles. If such activity was carried out for more than 90 days, then the fine will double and amount to 20% of income, but not less than 40,000 rubles.
In other words, Article 116 of the Tax Code of the Russian Federation should be applied in cases where the organization itself submitted an application for registration, but missed the deadline. Article 117 of the Tax Code of the Russian Federation should be applied in cases where the tax authority discovered and recorded the organization's activities without tax registration.

There is an opinion that the objective side of Article 117 of the Tax Code of the Russian Federation covers only the conduct of activities without registration in general, and not a separate division. That is, if an organization is registered with the tax authority, then it is impossible to hold it accountable for conducting activities through a separate subdivision without registering with the tax authority at its location (Decree of the Federal Antimonopoly Service of the Moscow District dated June 20, 2007 N KA-A40 / 5386 -07, dated 05.10.2007 N KA-A40 / 10377-07, FAS of the North-Western District dated 04.29.2004 N A66-6713-03).

However, not all courts share this opinion, for example, the FAS of the Far Eastern District confirmed the legitimacy of holding a taxpayer liable under Article 117 of the Tax Code of the Russian Federation for conducting activities through a separate subdivision without registration (Decree of 03.09.2008 N F03-A04 / 08-2 / 3593 ).

In conclusion, we note: when expanding your business, do not forget to fulfill the obligations imposed by tax legislation, this will help to avoid unnecessary disputes and save money.