Separate workplace tax code. Organization of the activities of a separate division. What does it mean to recognize a separate subdivision as such for the purposes of tax accounting

The presence of the company in new territories is necessary for the development of market niches. However, the opening of a division often raises many questions. These structures involve the accrual of taxes, which must be correctly registered and reflected in accounting.

What is a separate division?

Separate subdivision companies is a territorially separated structure in which there are jobs with an appropriate level of organization. The latter is presented additional requirement they must be stationary. A separate subdivision is given legal status only when it is opened for a period exceeding a month.

A subdivision is recognized as separate even if its appearance is not recorded in the constituent and administrative documentation. It also does not matter the list of powers that are assigned to the structure. The last rule is reflected in paragraph 2 of Article 11 of the Tax Code.

Signs of a separate division

OP meets two main characteristics:

• On its territory there are stationary workplaces. They will be used for at least one month.
• The structure is located at a territorial distance from the main office.
• The division must be created by the company itself.

IMPORTANT! Under the workplace, according to Article 209 of the Labor Code, is understood the place where the employee arrives to fulfill his official functions. The workplace must be controlled by the employer. These standards do not qualify for work from home. An employee's apartment cannot be considered a workplace. These signs do not include the work of a cleaning lady hired to clean the client's office. Such a "division" was not opened by the head office. Premises for work were not rented or purchased. Therefore, in this situation, there are no signs of a separate unit. OP also does not include payment terminals, ATMs.

The characteristics to be considered are determined based on the following factors:

• conditions specified in the contract;
• relationship between employees and the organization.

Territorial isolation is understood as a situation in which the addresses of the head office and its subdivisions differ.

Functions and goals of discovery

OP can be created to represent the interests of the company and protect them. It is usually opened for the following purposes:

• A legal entity was registered, but the leaders did not rent an office. All correspondence comes to the legal address. That is, to the address of the owner of the legal entity. But with the beginning of the functioning of the organization, it is difficult to work in a similar order. The actual location is required.
• It was decided to expand the business, develop markets in other cities.

If an additional structure will perform some of the functions of the main office, it makes sense to open a branch.

Varieties

A separate subdivision includes two forms:

• Branch. Takes over some of the functions of the head office. Its activity is relatively universal.
• Representation. Represents the interests of the organization, protects them.

In most cases, it makes sense to open a branch. This is a broader concept that allows you to assign various functions to the unit. Regardless of the chosen form, the OP will act on the basis of the norms approved by the main office.

How to open a separate division

To open an EP, you will need to create internal documentation. It includes, signed by members of the board of directors or representatives of the meeting of auctioneers. The order contains the following information:

• name of EP;
• the primary document on the basis of which the division is created (for example, the minutes of the meeting of the board of directors);
• location of the OP;
• head of a separate structure;
• registration deadline.

The order must be signed by the head central office. Then the Regulations on the OP are created. It contains the following data:

• department powers;
• functions;
• activity;
• composition of the management staff;
• other things related to work.

Only after the creation of all internal orders, you can proceed to registration and other legal actions for registration.

Do I need to register a separate subdivision?

It is necessary to notify the tax authority about the formation of the OP. But registration with the FIU and insurance companies is not always needed. This is a mandatory measure only under the following circumstances:

• Dedicated balance.
• Open current account.
• Payroll.

If all of the listed signs are absent, then it is not necessary to register a separate subdivision.

Creation of OP in terms of taxation

The creation of an EP entails certain tax consequences:

• tax registration;
• the need to pay fees;
• accrual of fees at the location of the OP.

Article 23, Article 23 of the Tax Code states that the owner of a subdivision is obliged to notify the tax authorities of its formation. Otherwise, a decision will be made on sanctions in the form of tax or administrative liability. Fines range from 10 thousand rubles to 30 minimum wages.

IMPORTANT! The law states that if the taxpayer has already been registered, it is not required to additionally enter it due to the opening of an OP. This rule is established by paragraph 39 of the resolution of the Plenum of February 28, 2001. It involves cases where the EP is open on the territory of the municipality where the head office is located.

Timing

To register, you must submit. It is provided, in accordance with Articles 23 and 83 of the Tax Code, within the following terms:

• Within 30 days from the date of reorganization or liquidation.
• Within 30 days from the date of creation of the unit.

You need to go to the tax authority at the location of the OP.

Do I need to go to the tax office if a separate subdivision does not operate?

The tax legislation adopted a norm that can be read in two ways. If you take it literally, then you do not need to submit applications to the tax office until the unit has begun to operate. However, such a decision can be fraught with risks for the company.

The law says that the application must be submitted within 30 days of opening. If the EP begins its activities after 2 months and is registered precisely after this period, the established time for filing an application will be disrupted.

IMPORTANT! It is necessary to report not only about the opening, but also about the closure of the OP. The application for liquidation is drawn up according to.

Summary.
The opening of a subdivision is taken into account by the tax office and other authorities. The new structure must be registered within the established time limits, otherwise you will have to pay a fine. There are clear signs of EP, on the basis of which education receives the appropriate legal status. If all the signs are not present, then the formed structure cannot be considered a separate subdivision.

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

In order to avoid errors when applying this concept for tax purposes (in particular, when calculating income tax), 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 an organization”, used in the Tax Code of the Russian Federation.

civil law

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

Note!

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

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

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

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

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

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

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

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

— the presence of property;

— Regulations on the subdivision;

-supervisor;

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

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

concept "location out of location" not defined in the Civil Code of the Russian Federation. AT this case, obviously, we are talking about the fact that the location of a separate subdivision of a legal entity does not coincide with the location of the legal entity itself. According to paragraph 2 of Art. 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration. Thus, the location of the legal entity coincides with the location of its permanent executive body, and in the absence of a permanent executive body, another body or person entitled to act on behalf of 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. When determining the place of state registration of a legal entity, one should be guided by the Law of 08.08.2001 No. 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs".

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

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

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

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

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

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

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

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

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

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

An executive body (collegiate and (or) sole person) is created in the LLC, which carries out the current management of the company's activities and is accountable to the general meeting of its participants. The sole management body may also be elected from among the members of the company (clause 1, article 91 of the Civil Code of the Russian Federation). The competence of the management bodies of the company, as well as the procedure for making decisions and speaking on behalf of the company, are determined in accordance with the Civil Code of the Russian Federation, the Law on Limited Liability Companies and the Charter of the company (clause 2, article 91 of the Civil Code of the Russian Federation). Thus, two executive bodies (collegiate and sole) can function simultaneously in one company.

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

1) conditions on the amount of the authorized capital of the company; the shares of each of the participants;

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

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

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

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

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

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

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

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

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

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

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

—on the rights of shareholders;

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

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

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

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

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

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

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

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

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

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

Note!

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

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

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

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

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

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

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

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

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

-name of the legal entity,

- its location,

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

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

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

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

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

Tax law

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

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

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

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

- territorial isolation,

-workplace,

- Equipped workplace.

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

territory— limited land space (factory territory);

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

Wherein "space" defined in particular as:

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

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

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

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

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

Note!

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

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

Subparagraph 1 of paragraph 2 of Art. 308 of the Tax Code of the Russian Federation provides that the continuation or resumption after a break of work at a construction site after the signing of the act specified in paragraph 3 of the named article leads to the addition of the period for conducting ongoing or resumed work and a break between works to the total period of existence construction site only if the territory (water area) of the 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 reflected in analytical registers tax accounting separately for each subsoil plot (deposit) or land plot (water area) reflected in the license agreement for the taxpayer (licenses for the right to use subsoil) (clause 2 of article 325 of the Tax Code of the Russian Federation).

Note!

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

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

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

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

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

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

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

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

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

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

Keep in mind!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The registering body has the right to apply to the court with a request for the liquidation of a legal entity in the event of gross violations of the law or other legal acts, if these violations are irreparable, as well as in the case of repeated or gross violations of laws or other regulatory legal acts of state registration of legal entities (clause 2, article 25 of Law No. 129-FZ).

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

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

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

Paragraph 1 of Art. 289 of the Tax Code of the Russian Federation, it is established that taxpayers, regardless of whether they have an obligation to pay tax and (or) advance tax payments, the features of calculating and paying tax, are obliged, after each reporting and tax period, to submit to the tax authorities at their location and the location of each separate division relevant tax returns. An organization 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).

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

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

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

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

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

Keep in mind!

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

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

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

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

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

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

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

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

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

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

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

Situation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A legal entity has the right to open its own separate subdivision, either one or several. In turn, a separate subdivision is subdivided into branches and representative offices, as well as other subdivisions, for example, stationary workplaces.

The definition, registration procedure and requirements for them are in the legislative acts of the Russian Federation. All of them have both similarities and differences.

Types and definition

A separate subdivision is a remote department of the organization, which is necessary when the company expands and the need arises to do business in other regions.

A separate subdivision is considered to be if:

• its address differs from the address of the parent company, indicated in the Federal Tax Service;
• there is at least one workplace for a period of more than a month;
• hired at least one employee;
• the facility in which the division is located is under the control of the parent organization.

There are several types:

• branch who may perform all or part of the organization's functions;
• representation, having the opportunity to express the interests of the company and to protect them;
• ordinary division of the company- an additional complex of the organization, located at a different address and having at least one workplace.

The choice of opening a branch, representative office or division depends on the necessary tasks of the company. For an organization or representative office, it is necessary to make a number of amendments and changes to the constituent documents.

There is no need to enter data on a representative office in the company's charter, which simplifies the design of such a department: there is no need to submit an application to the tax office.

To create a simple separate division, you need:

• order of the company's management on the organization of the unit;
• rule changes labor order companies;
• notification from tax and non-budgetary funds.

Important differences from the branch and are as follows:

• ease of design;
• it is not necessary to choose a person for a leadership position;
• the unit does not have a separate bank account;
• is an integral part of the company;
• in case of address change, it is enough to make changes to the documentation;
• does not have the authority to hire or fire employees.

What is a branch

Branch - a department separate from the company, located at a different actual address and having the opportunity to carry out all the functions of the organization and be its full representative.

The possibility of a branch activity is much wider than that of a representative office or an ordinary subdivision. However, its design is much more complicated. The fact of creating a branch must necessarily be reflected in the documents of the main company.

The decision to establish a branch and appoint its management is made voting by the members of the parent organization. The organizer endows the branch with its own property. In its work, the department relies on existing rules parent company.

What is a representation

The representative office is engaged in the expression of the interests of the parent company and, if necessary, their protection. All tasks of the department are reduced to representation of interests and administration of hospitality expenses. Usually does not have an individual bank account.

The creation of a representative office is similar to the creation of a branch: the documentation of the parent organization must contain records of the establishment of this type of representative office.

Main differences

Both a separate division and a branch are dependent on the parent company and the main office. The property they use and the funds in the accounts belong to the parent organization. The goals of their approval are similar: expand action opportunities for the company and local challenges.

The essential difference between a branch and an ordinary division is the registration. Creating an ordinary division is much easier and faster than organizing a branch. Data on the division is not included in the constituent documents of the parent company and the Federal Tax Service.

Organization type	Branch	Representation	Separate subdivision
Work tasks	Fulfillment of all or some of the company's tasks	Representation and protection of the interests of the parent company	Depends on company needs
Status of an independent legal entity	Missing	Missing	Missing
The presence of an entry about the organization in the constituent documents of the company	Registration required	Registration required	Registration is not required
Business Management	ongoing	Not maintained	ongoing
Documentation required for legal activities	Regulations on the establishment of a branch, entering data into the charter of the parent organization	Regulations on the establishment of a representative office, entering data into the charter of the organization	Decree of the management of the parent company
Having an individual account	Account available	Most often not available	Not available
Location	No restrictions	No restrictions	Organization is feasible only within one entity with a parent company

The decision on the need and creation of a branch is made by voting among the founders of the company, while a unit can be organized by one head. The branch also requires the transfer of copies to the Federal Tax Service and the appointment own leader, but this is not necessary to establish a subdivision.

Data on both the branch and the representative office must be reflected in the constituent documents of the organization. The difference between institutions is in their functions.

A branch, unlike a representative office, has much wider range of tasks. He can also be engaged in financial and economic activities, has an individual bank account and has a long accreditation period.

While a representative office is only concerned with representing the interests of the main office, a branch office can perform the same functions as the company itself. There are types of licenses that are not available to a representative office, but are subject to a branch.

Registration of organization types

1. It is necessary to prepare a package of necessary papers and certify them with a notary. Among them: a protocol on the creation of a parent company, a regulation on a branch or representative office, the charter of the organization with the entered data on the new structure (with the name and address), a statement on the creation of a new structure, a power of attorney for the chief head of the branch or representative office.
2. Documents should be submitted to the tax authority, which, after five working days, will issue confirmation of amendments to the company's charter. Receipt of documents is available to any authorized person. In situations where the papers were not picked up on time, they are sent to the companies.
3. Documents received after registration: certified charter of the company, notice of amendments to the constituent documents,.
4. The organization should be assigned GOSCOMSTAT codes.
5. It is necessary to register the created branch with the tax office and register it with the funds.

Creation of a separate division without the status of a branch and representative office:

1. A decree of the head of the parent company on the creation of a separate division is required.
2. You should notify the tax authority about the creation of the unit and its registration.

Tax payment data

By law, any organization is required to register with the tax authority at the place of the legal address of a separate unit. They must also report all changes and new subdivisions to the IRS within three days.

If several organizations are located on the territory subject to different inspections, but in one municipality, they can be registered with one tax office.

When changing the address of an ordinary unit, do not close it and reopen it with a new one. legal address, it is enough to change the address by submitting a petition to the tax office.

Violation of the deadlines for filing an application for registration with the tax authority entails a fine in 10000 rubles. If at the same time activities were carried out, then a fine is calculated in the amount of 10% of the amount of income, but cannot be less than 40,000 rubles.

Registration in funds

If the unit has a separate bank account, then registration in the funds at the location must be completed no later than 30 days from the date of creation of the new organization.

To register a unit with the Pension Fund or the Fund social insurance, you must provide a package of documents certified by a notary.

To register with the Pension Fund, you will need:

• data on registration with the tax authority;
• notice that the company was registered in the county subject to this Pension Fund;
• confirmation of the subdivision's ownership of an individual account;
• registration application.

To register with the Social Insurance Fund, you will need:

• data on the state registration of the company;
• data on tax registration;
• data on registration with the Social Insurance Fund of the main company;
• opening decree;
• application for registration;
• confirmation of the existence of their own account;
• Rosstat letter.

For violation of the terms of the required registration, a fine of 5,000 or 10,000 rubles is provided.

You can learn more about registering a separate division from this video.

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 independently maintain accounting whether the unit will have separate checking 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
	It is necessary to notify the tax inspectorate 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 (

The presence of a territorially remote subdivision of an organization raises a number of questions. Is it a branch, representative office or separate subdivision? How and where to pay taxes? Is one remote workplace considered a separate subdivision? These and other questions in this article are answered by A.A. Kulikov, Deputy Head of the Department of Documentary Checks of the Directorate for Tax Crimes of the Main Internal Affairs Directorate for St. Petersburg and the Leningrad Region.

Separate subdivision in the Tax Code of the Russian Federation

In accordance with paragraph 2 of Article 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization is

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

• territorial isolation of property owned by the organization by right of ownership from the organization itself, regardless of the fact of documenting the creation of the corresponding unit;
• availability of jobs (moreover, the legislator indicates a plurality of the latter) created for a period of at least one month (in accordance with the provisions of Article 6.1 of the Tax Code of the Russian Federation, a month is understood to be a calendar month);
• conducting activities by the organization through the relevant unit.

As a matter of priority, when deciding on the creation of a separate subdivision, it is necessary to establish the true meaning of isolation and its essential features.

Location of the organization and its division

In accordance with the provisions of the Tax Code of the Russian Federation, the concept of the location of the organization is not disclosed, as a result of which, taking into account the norms of Article 11 of the Tax Code of the Russian Federation, the conceptual apparatus of civil legislation can be fully involved. In accordance with paragraph 2 of Article 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 such, another body or person entitled to act on behalf of the legal entity without a power of attorney. Since the relevant norms of the Civil Code of the Russian Federation, as well as the Decree of the Plenum of the Armed Forces of Russia and the Plenum of the Supreme Arbitration Court of Russia dated July 1, 1996 No. registration of legal entities, let us turn to the text of the latter. Based on the meaning of subparagraph "c" of paragraph 1 of Article 5 federal law dated 08.08.2001 No. 129-FZ "On state registration of legal entities and individual entrepreneurs"The location of the permanent executive body of a legal entity is its address. Additional Information in relation to the concept of "address" is contained in subparagraph "e" of paragraph 2 of the same article, in which the address is understood as a set of details that determine the location of an object in space:

• name of the subject of the Russian Federation;
• the name of the district, city, other settlement;
• street name;
• house and apartment number.

Thus, the creation of a separate subdivision as a legal fact can be stated when the latter (that is, stationary jobs) is created at a different address than the address state registration(and hence location) of the organization.

A separate division, branch or representative office?

The concept of a separate subdivision must be clearly distinguished from civil law concepts similar in content to "branch" and "representative office". The latter, in accordance with Article 55 of the Civil Code of the Russian Federation, include a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them (representation) or performs all or part of its functions, including the functions of a representative office (branch) . By virtue of the direct indication of the Civil Code of the Russian Federation, representative offices and branches must be indicated in the constituent documents of the legal entity that created them. In the absence of such an indication, a representative office or branch cannot be considered established.

This problem, in particular, manifested itself in the application of the provisions of Chapter 26.2 of the Tax Code of the Russian Federation "Simplified Taxation System". In accordance with subparagraph 1 of paragraph 3 of article 346.12 of the Tax Code of the Russian Federation, organizations that have branches and (or) representative offices are not entitled to apply the simplified system. It was precisely this wording that in some cases became the reason for obstructing the use of the simplified tax system by taxpayers.

Creation of a separate division

The creation of a separate subdivision gives rise to a number of consequences for the taxpayer that are directly provided for by the legislation of the Russian Federation - registration with the tax authorities, as well as the calculation and payment of taxes and fees not only at the location of the organization, but also at the location of separate subdivisions (Article 19 of the Tax Code of the Russian Federation ).

The obligation to notify the tax authority of the creation of a separate subdivision is provided for in paragraph 2 of Article 23 of the Tax Code of the Russian Federation, while the obligation to register a taxpayer with the tax authorities at the location of a separate subdivision is provided for in paragraphs 1 and 4 of Article 83 of the Tax Code of the Russian Federation. For non-compliance with the above requirements, Article 116 of the Tax Code of the Russian Federation and 15.3 of the Code of Administrative Offenses of the Russian Federation provide for tax and administrative liability (up to 10,000 rubles and up to 30 minimum wages, respectively). At the same time, it should be taken into account that if the taxpayer is already registered with the tax authority, then there is no obligation to register with the same tax authority, but on a different basis (including in the case of creating a separate subdivision) (paragraph 39 of the resolution of the Plenum of the Supreme Arbitration Court of Russia dated February 28, 2001 No. 5 "On some issues of the application of part one of the Tax Code of the Russian Federation").

The deadlines for filing an application for tax registration at the location of a separate subdivision are given in both Article 23 and Article 83 of the Tax Code of the Russian Federation:

• in accordance with paragraph 2 of Article 23 of the Tax Code of the Russian Federation - within one month from the date of their creation, reorganization or liquidation;
• in accordance with paragraph 4 of Article 83 of the Tax Code of the Russian Federation - within one month after the creation of a separate subdivision (it should be noted that this norm of the Tax Code of the Russian Federation connects the obligation to send an application for tax registration at the location of a separate subdivision with the fact that the organization carries out activities through the specified separate division).

In accordance with Article 9 of the Tax Code of the Russian Federation, when applying the provisions of the Tax Code of the Russian Federation, the tax authorities are understood to mean the Ministry of the Russian Federation for Taxes and Duties and its subdivisions in the Russian Federation. Since the legislator, when deciding on the issue of tax registration of a taxpayer when creating a separate subdivision, focuses on the place of formation of such, it can be concluded that the taxpayer must submit an appropriate application to the tax authority in compliance with the territorial jurisdiction, without taking into account the specifics of accounting for certain groups of taxpayers in specialized tax authorities (tax authorities of an industry or subject orientation - construction, motor transport, banking, etc.). This conclusion is also confirmed by the fact that the need to register with the tax authorities at the place of creation of separate subdivisions is due to the provisions of the Tax Code of the Russian Federation, which provide for the obligation to distribute tax liabilities of the taxpayer, including at the location of these separate subdivisions. Since part of the taxpayer's tax liabilities is subject to distribution to the budgets of other territories, it is logical to assume a mechanism in which the payment of taxes falling on these territories would be controlled territorial bodies at the location of the separate subdivision. At the same time, it is impossible not to recognize the validity of the arguments that a separate subdivision in the framework of tax legal relations should be understood as such a subdivision that leads to the taxpayer's obligation to pay taxes to various budgets of the constituent entities of the Russian Federation or municipalities. Otherwise, the isolation of such a subdivision leads only to territorial isolation, in no way affecting the size of the taxpayer's tax liabilities. However, such argumentation, for all its logic, was not evaluated by the courts.

Stationary workplaces

A necessary sign of the creation of a separate subdivision is the presence of stationary jobs, that is, created for a period of at least one month. 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 the individual can be both labor and civil law contracts, 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 labor relations(regulated by the Labor Code of the Russian Federation), it should be recognized that jobs, in principle, can only arise if a contract is concluded with an individual labor contract. 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. This approach was fully supported by the Federal arbitration court of the Far Eastern District when the resolution dated February 14, 2001 No. F03-A59 / 01-2 / 96 was issued. With regard to the issue of the number of stationary jobs, it is necessary to draw the attention of taxpayers to individual arbitration cases, the resolution of which did not take place in favor of the latter - the court stated the possibility of creating a separate subdivision even if there is one stationary workplace (Decree of the FAS MO dated 23.01.2003 No. KA-A41 / 9052-02, resolution of the FAS VSO dated 09.01.2001 No. A33-8564 / 00-C3-F02-2926 / 00-C1).

Thus, it can be stated that the taxpayer's obligations arising from the fact of the formation of a separate subdivision arise from the moment of equipping stationary workplaces controlled by the employer, provided that activities are carried out through the specified separate subdivision.

This position has been confirmed in many judicial acts.

"... as established by the court and confirmed by the materials of the case, from the moment of appointment, that is, from 07.06.2002, the store director performed only representative functions, organized preparatory work for the company to receive goods for sale in the store. The renovation of the premises was completed on 02.09.2002. Stationary workplaces were equipped by 09/16/2002, the store staff began to perform their duties also from 09/16/2002. Considering the foregoing, the appellate court considers that tax office the fact of creation of stationary jobs and the fact of the beginning of financial and economic activity earlier than 16.09.2002 have not been proven...". Decree of the Federal Antimonopoly Service of the North-Western District No. А21-2902/03-С1 dated August 18, 2003

Obligations to pay taxes

The emergence of a separate subdivision for a taxpayer, by virtue of the provisions of Article 19 of the Tax Code of the Russian Federation and special norms of part two of the Tax Code of the Russian Federation, gives rise to additional responsibilities related to the determination of the proper place of payment of the relevant taxes.

Income tax individuals(Clause 7, Article 226 of the Tax Code of the Russian Federation).

Tax agents - Russian organizations specified in paragraph 1 of Article 226 of the Tax Code of the Russian Federation, which have separate subdivisions, are obliged to transfer the calculated and withheld tax amounts both at their location and at the location of each of their separate subdivisions.

The amount of tax payable to the budget at the location of a separate subdivision is determined based on the amount of taxable income accrued and paid to employees of this separate subdivision.

Unified social tax (clause 8, article 243 of the Tax Code of the Russian Federation).

Separate subdivisions that have a separate balance sheet, current account and accrue payments and other remuneration in favor of individuals, fulfill the obligations of the organization to pay tax (advance tax payments), as well as the obligation to submit tax calculations and tax returns at their location.

The amount of tax (advance payment of tax) payable at the location of a separate subdivision is determined on the basis of the value of the tax base relating to this separate subdivision.

The amount of tax payable at the location of the organization, which includes separate subdivisions, is determined as the difference between the total amount of tax payable by the organization as a whole and the total amount of tax payable at the location of the separate subdivisions of the organization.

Insurance contributions for compulsory pension insurance (clause 8, article 24 of the Federal Law of December 15, 2001 No. 167-FZ).

Insurers - organizations that include separate divisions, pay insurance premiums at its location, as well as at the location of each of the separate divisions through which these insurers pay remuneration to individuals.

Tax on property of organizations (Article 384 of the Tax Code of the Russian Federation).

An organization that includes separate subdivisions with a separate balance sheet pays tax (advance tax payments) to the budget at the location of each of the separate subdivisions in respect of property recognized as an object of taxation in accordance with Article 374 of the Tax Code of the Russian Federation, which is on a separate balance sheet of each of the them, in an amount determined as the product of the tax rate in force in the territory of the corresponding subject of the Russian Federation, where these separate subdivisions are located, and the tax base ( average cost property) determined for the tax (reporting) period in accordance with Article 376 of the Tax Code of the Russian Federation in respect of each separate subdivision.

Corporate income tax (Article 288 of the Tax Code of the Russian Federation).

Taxpayers - Russian organizations with separate subdivisions, calculate and pay the amounts of advance payments to the federal budget, as well as the amounts of tax calculated at the end of the tax period, at their location without distributing the said amounts among separate subdivisions. Payment of advance payments, as well as tax amounts to be credited to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, is made by taxpayers - Russian organizations at the location of the organization, as well as at the location of each of its separate divisions based on the share of profit attributable to these separate divisions.

This profit share is defined as the arithmetic average of the share 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 depreciable property, determined in accordance with paragraph 1 of Article 257 of the Tax Code of the Russian Federation, in general for the taxpayer.

The share of the average number of employees and specific gravity the residual value of depreciable property is determined based on the actual indicators of the average number of employees (labor costs) and the residual value of fixed assets of these organizations and their separate divisions at the end of the reporting period.

The amounts of advance payments, as well as the amounts of tax to be credited to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, are calculated at the tax rates in force in the territories where the organization and its separate subdivisions are located. Calculation of the amounts of advance tax payments, as well as the amounts of tax payable to the budgets of the constituent entities of the Russian Federation and the budgets of municipalities at the location of separate subdivisions, is carried out by the taxpayer independently.

Information about the amounts of advance tax payments, as well as the amounts of tax calculated at the end of the tax period, the taxpayer shall notify his separate subdivisions, as well as the tax authorities at the location of the separate subdivisions. late established by the named article for filing tax returns for the relevant reporting or tax period.