A separate division of a legal entity located outside its location. Registering a separate division

Separate division

A separate division is always an additional hassle for an accountant. Problems begin already at the stage of its creation. What is a separate division? When is it considered created? In what cases do you need to register for tax purposes at your location, and in what cases not?

What is a separate division

The concept of a separate division of an organization is given in clause 2 of Article 11 of the Tax Code of the Russian Federation. Thus, a separate division of an organization is considered to be any division territorially isolated from it, at the location of which stationary workplaces are equipped. A workplace is considered stationary if it is created for a period of more than one month.

From this definition we can conclude that a component of an organization is recognized as its separate division if the following characteristics are present:

• territorial location outside the location of the organization. That is, the address of the structural unit must differ from the address of the organization indicated in the constituent documents;
• equipment at the location of a separate workplace unit for a period of more than one month.

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

The concept of a workplace is contained in the Federal Law of July 17, 1999 N 181-FZ “On the fundamentals of labor protection in Russian Federation".

According to Article 1 of the Law workplace- a place where an employee must be or need to go in connection with his work and which is directly or indirectly under the control of the employer. A similar definition is contained in Article 209 of the Labor Code.

In practice, the question sometimes arises whether it is possible to talk about a separate division if the organization has equipped workplaces for “foreign” workers. For example, the organization built a building and equipped it office rooms for rent.

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

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

Hence the conclusion follows: stationary workplaces, which are referred to in paragraph 2 of Article 11 of the Tax Code of the Russian Federation, are workplaces created for a period of more than one month, equipped by the organization for its employees. That is, at the location of the separate unit they must carry out job responsibilities employees of the organization. Setting up workplaces for employees of another organization does not lead to the formation of a separate division.

The conclusion drawn is confirmed by the definition of the location of a separate unit given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. This is recognized as the place where the organization carries out its activities through its separate division.

It is impossible for an organization to conduct activities through a separate division if there are no employees of the organization at its location.

Example 1. LLC "Condor" is registered in Tver. The company purchased an office in Moscow and rented it out. Only the tenant's employees work in the office.

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

Let's consider the case when an organization rents workplaces created by another organization for its employees outside its location. In this situation, there is a basis for classifying these workplaces as an integral part of the tenant organization. Thus, the organization will have to recognize the emergence of a separate division.

What if organizations operate outside their location? individuals with whom the organization has entered into civil contracts rather than labor contracts (for example, a contract or service contract)? In this case, for the purposes of the Tax Code of the Russian Federation, it is impossible to talk about the creation of a separate division. There are no labor relations with individuals, which means they cannot be called employees.

However, be careful: civil contracts often hide ordinary labor relations. Therefore, such agreements are subject to close attention during inspections carried out by the labor inspectorate. If it is proven that civil contract concluded only for the purpose of “disguising” labor relations, a fine cannot be avoided<*>. Tax authorities can also make claims related to tax registration, payment of taxes and submission of reports at the location of such a separate division.

<*>For more information about this, read the article “Civil contract: be careful” // RNA, 2003, No. 5. - Note. ed.

The following question is often asked: what to do if only one job has been created?

Separate division of a legal entity: reporting and taxation

A literal interpretation of the definition given in Article 11 of the Tax Code of the Russian Federation may lead to the conclusion that in order to be recognized as a separate division, there must be at least two jobs. After all, the definition says that the location of a separate unit requires the presence of stationary workplaces. However, this does not mean that the above provision of the Code requires the presence of two or more jobs. The condition for creating stationary workplaces established by Article 11 of the Code will be met even if only one workplace is equipped. As a result, if only one workplace is created in a territorially separate structural unit, such a unit is considered created for tax purposes. For example, at the location of currency exchange offices, as a rule, one workplace is created. At the same time, banks recognize these exchange offices as separate divisions.

Example 2. Atlant LLC is registered in Omsk. The company acquired production premises in the Tomsk region that were unsuitable for use and required major repairs. To protect the facility during repairs, a security guard was hired under an employment contract.

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

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

If you carefully read the definition of the concept of “separate division” given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation, you will notice one interesting detail. It is defined through the concept of a “territorially separate unit from the organization.” The latter should be interpreted in the meaning in which it is used in other branches of law (clause 1 of Article 11 of the Code).

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

Branches and representative offices operate on the basis of approved provisions and must be indicated in the constituent documents of the organization (clause 3 of Article 55 of the Civil Code of the Russian Federation).

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

The Tax Code establishes an additional criterion - the creation of permanent jobs. If the criterion is met, the branch or representative office is recognized as a separate division from the point of view of tax legislation.

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

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

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

Example 3. Let's use the conditions of example 1. Let's assume that Condor LLC opened a representative office at the location of the acquired office. It employs employees of the society.

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

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

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

When is a unit considered created? When it is equipped with stationary workplaces. Such a date could be, for example, the day when the employee began his work duties at the location of the unit. The legality of this position was, in particular, confirmed by the Resolution of the Federal Arbitration Court of the West Siberian District dated November 11, 2002 in case No. F04/4146-855/A03-2002.

As you know, in addition to registration at the location of separate divisions, the organization must register with the tax inspectorates at the location of its real estate and vehicles subject to taxation. Therefore, if an organization is already registered with the tax office at the location of the separate division, there is no need to register again. This is stated in the Letter of the Ministry of Taxes and Taxes of Russia dated 08.08.2001 N ShS-6-14/613@.

In addition to registering at the location of a separate division, the organization is also obliged to report its creation at the place of its registration. A month is allotted for this from the date of creation of the unit (clause 2 of Article 23 of the Tax Code of the Russian Federation). The liquidation of units should be reported in the same way. An organization may be registered with several tax inspectorates. In this case, she must inform all tax inspectorates where she is registered about the creation of a separate division.

Example 4. JSC "Topol" is registered in Moscow and is registered only with the capital's tax office. In 2002, it acquired a store in St. Petersburg and rented it out. Since it was purchased real estate, the company registered for tax purposes in St. Petersburg. On January 1, 2003, the CJSC terminated the lease agreement and decided to carry out trading activities independently. For this purpose, workers were recruited into the store.

In this case, a separate division is considered created on January 1, 2003. However, the organization is not required to re-register for tax purposes in St. Petersburg. She must only inform the tax inspectorates in Moscow and St. Petersburg about the creation of a separate division.

Sanctions for violations

If an organization submits an application for tax registration at the location of a separate division in violation of the one-month period allotted for this, it faces a fine. If the organization is late in submitting the application by no more than 90 days - 5,000 rubles, by more than 90 days - 10,000 rubles. This is stated in Article 116 of the Tax Code of the Russian Federation.

If an organization not only delays submitting an application, but also begins activities at the location of a separate division, liability will arise in accordance with Article 117 of the Code. The fine will be calculated as a share of the income received as a result of such activity (10 or 20% depending on the duration of the activity). The minimum fine is RUB 20,000.

Sanctions threaten not only the organization, but also its officials who committed the listed violations. For late filing of an application, a fine of 5 to 10 minimum wages (that is, 500 - 1000 rubles) will be charged, and if at that time a separate unit was operating - from 20 to 30 minimum wages (2000 - 3000 rubles). This is stated in Article 15.3 of the Code of the Russian Federation on Administrative Offenses.

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

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

<**>Read more about this reference material "Separate units: how to pay taxes and submit reports" // RNA, 2003, No. 9. - Ed.

S.A. Kumekov

magazine "Russian Tax Courier"

What is a separate division of an organization?

Article 11 of the Tax Code of the Russian Federation names three signs of a separate division

In the Civil Code there is such a thing as a separate division - this is a division located outside the location of the legal entity, performing all or part of its functions.

Reasons for creating a separate division

• Business expansion
• Optimization of management of structural divisions in other regions
• The organization’s desire to bring production closer to sources of raw materials; requirements of environmental legislation on the location of hazardous and harmful production facilities away from populated areas

Signs of a separate unit

• Territorial isolation - located outside the location of the legal entity
• Stationary workplace - implies the presence of workers
• Separated - have their own structure of governing bodies, determined by the parent organization (Article 209 of the Labor Code of the Russian Federation)

The equipment of a stationary workplace means the creation of all conditions necessary for the performance of labor duties, as well as the performance by the employee of such duties (letter of the Ministry of Finance dated July 28, 2011 N 03-02-07/1-265, resolution of the Federal Antimonopoly Service of the North Caucasus District dated June 20, 2007 N F08-3590/2007-1449A, FAS Northwestern district dated November 2, 2007 in case A26-11293/2005).

Separate divisions are divided into

• Branches
• Representative offices
• OP on tax legislation

The company may create branches and open representative offices by decision of the general meeting of the company's participants. Branches and representative offices are separate divisions of an organization located outside the location of the legal entity itself. The main differences between a representative office and a branch of a company are the functions performed.

Since the Tax Code of the Russian Federation and other branches of legislation do not contain the concept of “structural unit of an organization,” one should be guided by clause 16 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, according to which the structural units of an organization should be understood as branches, representative offices, and departments , workshops, sections, sectors, etc.

Functions of the Representative Office and Branch of a legal entity

Representative offices exclusively represent the interests of the Company and protect them, while the branch, on the contrary, carries out all or part of the functions of the parent Company, including the functions of the representative office.

The branch and representative office of the company are not legal entities and act on the basis of regulations approved by the company. A branch and representative office are endowed with property by the company that created them. The heads of representative offices and branches are appointed by a legal entity and act on the basis of a power of attorney.

Does the creation of an OP mean concluding an employment contract with an employee who works outside the office?

According to Art. 57 of the Labor Code of the Russian Federation, the mandatory conditions for inclusion in an employment contract are, inter alia, place of work, labor function, conditions determining the nature of the work. When carrying out activities of a traveling nature, there are no grounds for registering the organization with the tax authority at the place where such activities are carried out (letters of the Ministry of Finance of Russia dated 03/01/2012 N 03-02-07/1-50, dated 07/28/2011 N 03-02 -07/1-265). For example, when employees visit various organizations, when installing equipment or programs specified employees do not operate in the organization’s office (own or rented).

The same applies to employees working directly at home.

Homeworkers are considered to be persons who have entered into an employment contract to perform work at home using materials and using tools and mechanisms provided by the employer or purchased by the homeworker at his own expense (Article 310 of the Labor Code of the Russian Federation).

When an organization carries out activities using the labor of a homeworker without stationary workplaces, no grounds arise for registering the organization with the tax authority at the employee’s place of residence.

If the Internet is used to perform a job function and to interact between an employer and an employee on issues related to its implementation, then a remote work agreement can be concluded between the parties.

According to Art.

312.1 of the Labor Code of the Russian Federation, remote work is the performance of certain employment contract labor function, in particular, outside a stationary workplace. Thus, remote work does not require the installation of a stationary workplace. Consequently, regardless of how long a remote worker is hired, a separate unit is not formed.

An organization that enters into an agreement to perform work using workers hired by a third organization does not create a separate division. A separate division arises from the organization that provides the personnel.

• The job must be created for a period of more than one month

The actual time spent by a particular employee at a workplace that is created or used by an organization outside its location is not of fundamental importance for recognition of a separate unit.

The above signs together mean that the organization operates through its own separate division. For the purposes of tax control, the Russian organization at the place of such activity (location of a separate division) must be registered with the tax authority (Art.

Date of creation of a separate division

The creation of a permanent workplace can be confirmed

• Premises rental agreement
• An employment contract with an employee, in which the workplace is determined at the location of a separate unit
• Primary documents evidencing the conduct of activities at the location of the separate division (invoices, acceptance certificates)

The earliest of the documents recording the presence of all the signs of a separate division will determine the date of its creation.

If special permission from authorized bodies, in particular a license, is required to conduct an activity, then the date of its issuance can be recognized as the date of creation of a separate division, since it is from this date that the activity can be carried out.

simplified tax system when registering a separate division

If an organization has created a separate division that is not a branch or representative office, and has not indicated it as such in its constituent documents, then it has the right to apply the simplified tax system.

The cash register used by the OP is registered with the Federal Tax Service at the location of this unit.

If the OP is not allocated to a separate balance sheet, the organization must pay insurance premiums and submit reports on them to the territorial bodies of the Pension Fund and the Social Insurance Fund of the Russian Federation at their location.

An organization that includes OPs is required to register with the tax authority at the location of each of its OPs.

Types of services from AAA-Investments LLC

• Registration of companies (LLC/IP; PJSC/JSC)
• Registration of non-profit organizations
• Registering changes
• Purchase and sale of shares
• Changes to the Criminal Code
• Changes in the types of activities of the company (OKVED)
• Bringing the charter into compliance with Federal Law No. 312-FZ
• Change of name, legal address
• Liquidation and reorganization of LLC/PJSC/JSC (CJSC)
• Termination of activities as an individual entrepreneur
• Other services
• Entry into the register of small businesses in Moscow

We are glad to see you among our Clients!

Change of address of a separate division... Or the promised one has been waiting for three years

For several years, the Ministry of Finance has promised to introduce amendments to tax legislation regulating the procedure for registering separate divisions of organizations with tax authorities in connection with a change in their location. This is confirmed by a number of written explanations on this issue. Currently, the Tax Code has been adjusted, including on tax administration issues. But did the financial department fulfill its promise?

Gap in tax legislation

Let us recall the essence of the problems. The tax legislation of the Russian Federation does not define what is meant by a change in the location of a separate division of an organization, and, as a result, the procedure for recording separate divisions of an organization with the tax authorities when changing their location is not established.

In this regard (in the absence of any tax legislation regulating the actions of taxpayers when changing the address of a separate division), the Ministry of Finance in its explanations regularly advises taxpayers to be patient and wait for the corresponding changes in the Tax Code, and until this happens, insists on carrying out the procedure closing and opening of a separate division. This is stated in his recent Letter dated June 18, 2010 N 03-02-07/1-282<1>.

A separate division moves to a new office

In practice, a fairly common situation is when, after the termination of a contractual relationship with one landlord, a separate unit has to move to another premises, which, naturally, involves a change of address. As a result, the taxpayer has the obligation to register a separate division for tax purposes at a new address. These are the rules established in Art. Art. 23, 83 Tax Code of the Russian Federation.

Note! The Tax Code does not contain instructions on what day to consider the day of creation of a separate division. There are no clarifications from regulatory authorities on this issue. Moreover, according to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, a separate division is considered created even if the fact of its creation is not reflected in any organizational and administrative document.

For violation of the deadlines for filing an application for tax registration of an organization in accordance with Art. 116 of the Tax Code of the Russian Federation faces penalties in the amount of 5,000 to 10,000 rubles.

Pointing out in Letter N 03-02-07/1-282 to the absence in tax legislation of norms regulating the procedure for changing the address of a separate division, Ministry of Finance officials recommend that taxpayers in this situation deregister it with the tax authority at the old location and register it in tax authority at a new address (see also Letters of the Ministry of Finance of Russia dated December 28, 2009 N 03-02-07/1-575, dated May 8, 2009 N 03-02-07/1-236, dated July 14, 2008 N 03-02 -07/1-278).

Note. The Ministry of Finance believes that when changing the address of a separate division, the organization must carry out the procedure for closing and opening a separate division.

The tax department adheres to a similar point of view in Letters dated 08/21/2009 N 3-6-03/345, dated 05/02/2007 N 09-2-04/1867@, and in practice tax authorities often insist on compliance with these rules even in the case when the organization is forced to change the location of a separate division within the territory under the jurisdiction of one tax authority.

This approach to changing the address by a separate unit was also supported by the judges in the Resolution of the Federal Antimonopoly Service of the Eastern Military District dated September 16, 2008 in case No. A82-14769/2007-20. As the arbitrators pointed out, the provisions of the Tax Code of the Russian Federation do not provide for a procedure for changing the location of a separate division of a legal entity by making such an entry, but contain only a procedure for deregistering an organization at the location of a separate division and registering it regardless of the location of the tax authority.

In the event that an organization does not comply with the recommendations of controllers and doesn't close separate division at the old address, tax authorities often return without execution a message to the organization about the registration of its separate division for tax registration at the new address, sent in order to fulfill the obligation provided for in paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation (form N S-09-3 “Notification on the creation (closing) of a separate division of an organization on the territory of the Russian Federation”, approved by Order of the Federal Tax Service of Russia dated April 21, 2009 N MM-7-6/252@, or a written notification drawn up in in any form).

The requirements of controllers made to taxpayers when changing the address of a separate division cannot be called justified, and this is confirmed by court decisions, in particular Resolution of the Federal Antimonopoly Service of the Far East of Russia dated November 24, 2008 N F03-5147/2008. In it, the judges indicated that the tax authority’s reference to Art. 11 of the Tax Code of the Russian Federation as a justification for the fact that the address of the location of a separate division cannot be changed, is unlawful, interprets this rule of law broadly, since in this case only the address of the unit has changed due to the expiration of the lease period of the previously occupied premises, and the management, staffing table employees of the division, the functions of the latter remained the same. Moreover, the norms of tax and civil legislation do not provide for the liquidation of an organization in the event of a change in its location. Since tax legislation does not contain rules providing for a change in the location of a separate division, the inspector’s conclusion that this term refers only to a legal entity is also not based on the law. According to the judges, in this case it was enough for the tax authority notifications company on changing the location of a separate subdivision in order to remove it from tax accounting and registration at a new address (see also Resolution of the Federal Antimonopoly Service dated February 27, 2010 in case No. A55-10094/2009).

Taking into account the systematic interpretation of the norms established in Art. Art. 11, 83, 84 of the Tax Code of the Russian Federation, the judges in the Resolution of the Ninth Arbitration Court of Appeal dated April 30, 2010 N 09-AP-6722/2010-AK also indicate the inconsistency of the tax authorities’ arguments on the issue of changing the address of a separate division.

The address changes - the problems remain

Changing the address of a separate division causes taxpayers a lot of trouble. On the one hand, the procedure for closing a separate division (which the controllers insist on) is associated, as a rule, with the reconciliation of mutual settlements (including with the tax authority) or with an on-site tax audit in relation to this division, which is provided for in paragraph 5 of Art. 84 Tax Code of the Russian Federation. Closing also involves significant costs for completing a fairly large amount of paperwork. Some of them must be submitted to the tax authority, others are needed to bring internal documents into compliance (for example, orders to close (open) a separate division, an order to appoint a manager, personnel orders and etc.).

On the other hand, tax authorities make claims against organizations operating at an address other than that specified in the charter. Moreover, having not found the taxpayer at his legal address, tax authorities often go to court with a demand for his liquidation, citing the fact that indicating a fictitious address during registration is a gross violation of the law (Clause 2 of Article 25 of the Federal Law of 08.08.2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”). However, this position of tax officials, as a rule, does not find support from judges, since the said norm deals with violations that are irreparable. A discrepancy between addresses can hardly be considered as such, as evidenced by the existing arbitration practice (see, for example, Resolutions of the FAS North-West District dated 02/27/2010 in case No. A56-25535/2009, FAS Far Eastern District dated 13.11.2008 No. F03-5002/2008, FAS PO dated 08/14/2008 in case N A06-187/2008-21, FAS ZSO dated 04/01/2008 N F04-1548/2008(1783-A03-24), Determination of the Supreme Arbitration Court of the Russian Federation dated 05/30/2007 N 5933/07).

If the taxpayer is not ready to enter into litigation with tax office, in order to avoid problems associated with the address, or more precisely, with the discrepancy between the legal and actual addresses, he sometimes resorts to the most harmless method in this case - registering a separate division at the place of his actual location, for example, at the address of a rented office.

Note. Arbitration practice shows that a mismatch of addresses is not a violation of an irreparable nature.

It turns out that, having avoided claims from the tax authorities regarding the address in one case, the taxpayer is faced with the problem of changing the address of a separate division in another, when he has to move to a new office.

If an organization does not register a separate division at a new address, it again risks facing claims from tax authorities caused by a mismatch of addresses - legal and actual. It turns out to be a vicious circle (and, unfortunately, this is far from the only problem associated with the activities of separate units).

However, over the past six months, significant changes have occurred regarding separate divisions, in particular, in the order of registration with the tax authorities of organizations at the location of their separate divisions.

Changes that have already happened

The first step was the entry into force on March 10, 2010 of the Procedure for registering and deregistering Russian organizations with the tax authorities at the location of their separate divisions<2>(hereinafter referred to as the Procedure). The said Procedure provides for the possibility of registering with the tax authorities of an organization at the location of its branch (representative office) on the basis of an application for registration, which is submitted by the organization to the registering tax authority simultaneously with an application for amendments to the constituent documents of a legal entity in relation to the corresponding branch ( representative office). Let us note that previously there was no single document regulating the procedure for registering (and deregistering) separate divisions; there were only scattered regulations that approved the forms of documents used for registering such divisions in certain cases, and explanations from officials on about this.

<2>Approved by Order of the Ministry of Finance of Russia dated November 5, 2009 N 114n.

Then, in Letter dated March 16, 2010 N MN-22-6/179@, the Federal Tax Service explained the algorithm and features of the implementation by tax authorities of certain provisions of the said Procedure, taking into account currently existing software. In addition, Order of the Federal Tax Service of Russia dated March 24, 2010 N MM-7-6/138@ approved the form for an organization’s notification of the choice of a tax authority for registration of several of its separate divisions located in the same municipality in territories under the jurisdiction of different tax authorities.

Next, there was a change in the position of the main tax department regarding the discrepancy between legal and actual addresses. Thus, finally agreeing with the opinion of the judges, the Federal Tax Service in Letter dated 05.05.2010 N MN-20-6/622 admitted that liquidating an organization simply because it is not located at its legal address is too harsh a measure. Therefore, the lower tax authority recommended that the Federal Tax Service be limited to imposing a fine on the head of the organization in the amount of 5,000 rubles. (P.

What are the differences between a branch and a separate division?

3 tbsp. 14.25 Code of Administrative Offenses of the Russian Federation).

And finally, Letter of the Ministry of Finance of Russia dated June 18, 2010 N 03-02-07/1-282 was issued, in which, unlike previous clarifications on the issue of changing the address of a separate division, it is indicated on the (then) bill providing for amendments to part the first Tax Code of the Russian Federation, including those aimed at improving the procedure for registering organizations with tax authorities.

Changes you've been waiting for

Changes to Art.

Art. 23, 83, 84 of the Tax Code of the Russian Federation, introduced by Federal Law of July 27, 2010 N 229-FZ<3>, should be regarded primarily as the Ministry of Finance fulfilling its promises.

And in order to find out in what order and within what time frame it is necessary to notify the tax authority about a change in the address of a separate division, let us turn to the provisions of the said Law.

<3>For the text of the Law and commentary to it, see the magazine “Acts and Comments for Accountants,” N N 16, 17, 2010.

According to the new edition of paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation, the taxpayer is obliged (as was the case before) to report on all separate divisions of the organization created on the territory of the Russian Federation (with the exception of branches and representative offices). This must be done, as before, within a month. The taxpayer is also charged with making changes to information previously reported to the tax authority about such units. Legislators set a three-day period for its implementation.

A three-day period is also established for reporting the termination of activities through separate divisions, including branches and representative offices. The organization must meet this deadline even in the event of the closure of separate divisions (branches and representative offices) (clause 3.1, clause 2, article 23 of the Tax Code of the Russian Federation). Thus, the taxpayer will be allocated more short term for submitting information about closure, rather than a month according to the previously valid edition.

In addition, the list of ways for taxpayers to submit such information (clause 7 of Article 23 of the Tax Code of the Russian Federation) will also be expanded. Now this norm provides for the possibility of submitting messages not only in person or through a representative, but also electronically via telecommunication channels, which, in our opinion, will significantly simplify this procedure for the taxpayer.

In this regard, taking into account the changes being made, the next step towards streamlining the procedure for submitting information about separate divisions should be the approval of new forms (formats) of messages, as well as the procedure for their submission, which, by virtue of clause 7 of Art. 23 of the Tax Code of the Russian Federation are approved by the main tax department of the country.

So, from a literal reading of paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation (as amended) it follows that the list changes made to information about a separate division, not specified. At the same time, a change in his location (or a change of address), in the author’s opinion, fully meets the criteria changes, especially since clause 4 of Art. 84 of the Tax Code of the Russian Federation (as amended) directly states: in the event change of location separate division of the organization its deregistration is carried out by the tax authority, in which the organization was registered. And tax authorities are required to do this within five days from the date of receipt of the message submitted (sent) by the Russian organization in accordance with clause 2 of Art. 23 of the Tax Code of the Russian Federation (which corresponds with paragraph 7 of the said article). Registration organizations in the tax authority at the new location of the separate division carried out on the basis of documents received from the tax authority at the previous location of a separate division of the organization.

* * *

Thus, taking into account the amendments made to the Tax Code, we can conclude that the procedure for submitting information about a change of address of a separate division to the tax authority is regulated. True, it will be in effect from the moment the above changes come into force, that is, from 09/02/2010<4>. It can be argued that the need to close and open a separate division in connection with a change in its location, which the controllers had previously insisted on, has disappeared.

<4>In accordance with Art. 10 of Federal Law N 229-FZ, this document comes into force after one month from the date of official publication (with the exception of certain provisions that come into force at other times). The document was published in Rossiyskaya Gazeta, No. 169, 08/02/2010.

O.P. Grishina

Journal expert

"Current accounting issues

and taxation"

The concept of “separate division” is used both in the Civil Code and in the Tax Code.

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

Civil legislation

In accordance with paragraph 1 of Art. 55 Civil Code of the Russian Federation representation is a separate division of a legal entity located outside its location, which represents the interests of the legal entity and protects them. Branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office (Clause 2 of Article 55 of the Civil Code of the Russian Federation). Thus, representative offices and branches are two different types (varieties) of separate divisions of a legal entity, located outside its location and either representing the interests of the legal entity and protecting them, or carrying out all or part of its functions, including the functions of representation. There are no other types of separate divisions of a legal entity defined in the Civil Code of the Russian Federation, that is, their list is closed.

Note!

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

Taking into account 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. carrying out the functions of the organization.

The difference between a representative office and a branch is that they carry out various functionsorganizations. The 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 types of separate divisions of a legal entity is their isolation. It is obvious that the isolation of a division 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 reason is

The sign of a separate division of an 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. The 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 unit include:

—availability of property;

— regulations on the division;

-supervisor;

—indication of the presence of a subdivision in the constituent documents of the organization.

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

Concept "off-site location" not defined in the Civil Code of the Russian Federation. In this case, obviously, we are talking about the fact that the location of a separate division 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 a 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. Moreover, only in the absence of a permanent executive body, the location of the legal entity coincides with the location of another body or person having the right 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:

—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 having the right to act on behalf of the legal entity without a power of attorney), through which communication with the legal entity is carried out (sub. “ V");

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

In this case, the location of a separate division of a legal entity should not coincide with the location of the legal entity itself.

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

It can be assumed, taking into account the provisions of paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, that the location of a separate division of a legal entity means the location of either the property of the specified division or its head. It is obvious that the concept "the place is foundDenia" coincides with the concept "address", namely with a postal address.

If, for example, the address of the permanent executive body of a legal entity (plant) is Ivanovsk, Ivanova Street, building 1, building 1; the address of workshop No. 1 of the plant is Ivanovsk, Ivanova street, building 1, building 2; the address of workshop No. 2 of the plant is Ivanovsk, Ivanova Street, building 1, building 3, then the indicated workshops can be considered as separate divisions of the specified organization (plant). But should they be considered as such and, therefore, listed in the constituent documents?

From Art. 55 of the Civil Code of the Russian Federation, we can conclude that an organization’s classification of its structural unit as a separate division is the right of this organization. However, in the case when a structural unit that is located outside its location (a necessary sign of a separate unit) is classified by the organization as a separate unit, it must be named in its constituent documents without fail.

How to determine what is "permanently operatingadditional 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 organswe are a legal entity" used in articles devoted to the management of organizations of only three specific types - limited liability company (LLC), joint-stock company (JSC), production cooperative.

An executive body (collegial and (or) sole) 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 can be elected not from among the participants of the company (Clause 1, Article 91 of the Civil Code of the Russian Federation). The competence of the company's management bodies, 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 of Article 91 of the Civil Code of the Russian Federation). Thus, two executive bodies (collegial and individual) can function simultaneously in one society.

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

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

2) on the size, composition, timing and procedure for making contributions by participants;

3) on the responsibility of participants for violation of obligations to make deposits;

4) on the composition and competence of the company’s management bodies and the procedure for their decision-making (including issues on which decisions are made unanimously or by a qualified majority of votes);

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

The executive body of a JSC can be collegial (board, directorate) and (or) individual (director, CEO). He carries out the current management of the company's activities and is accountable to the board of directors (supervisory board) and the general meeting of shareholders. By decision of the general meeting of shareholders, the powers of the executive body of the company can be transferred under an agreement to another commercial organization or to an individual entrepreneur (manager) (clause 3 of Article 103 of the Civil Code of the Russian Federation). The competence of the management bodies of a joint-stock company, as well as the procedure for 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 of Article 103 of the Civil Code of the Russian Federation).

Thus, the following may 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 individual entrepreneur (manager), to whom the powers of the executive body are transferred under the agreement.

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

The charter of the 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 following conditions:

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

— about the rights of shareholders;

— on the composition and competence of the company’s management bodies and the procedure for their decision-making (including issues on which decisions are made unanimously or by a qualified majority of votes) (clause 3 of Article 98 of the Civil Code of the Russian Federation).

Executive bodies production cooperativeperative are the board and (or) its chairman. They carry out the ongoing management of the activities of the cooperative 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 management bodies of the cooperative and the procedure for making decisions by them are determined by legislation and the charter of the cooperative (clause 2 of article 110 of the Civil Code of the Russian Federation).

Thus, the board and (or) its chairman can act as the executive bodies of a production cooperative. Consequently, two executive bodies (the board and (or) its chairman) can function simultaneously in one production cooperative. 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 responsibility for violating the obligation to make share contributions;

3) on the nature and procedure for the labor participation of its members in the activities of the cooperative and their responsibility for violating the obligation of 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 their decision-making (including on issues on which decisions are made 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 executive”body of a legal entity" is not defined in the Civil Code of the Russian Federation (infirst part of the Civil Code of the Russian Federation, this concept is used only inclause 2 art. 54 of the Civil Code of the Russian Federation).

This concept is also absent from the Law of 02/08/98 No. 14-FZ “On limited liability companiesstu", Law of December 26, 1995 No. 208-FZ "On joint stock companies" and Law dated 05/08/95 No. 41-FZ "About productionnational cooperatives.” At the same time, as stated above, the above-mentioned organizations allow the functioning of several executive bodies of a legal entity. In this regard, the problem of identifying a permanent executive body of a legal entity arises.

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 responsibilities through its bodies operating in

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

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

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

The provisions of paragraph 1 of this article are given above. But besides 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 responsibilities through its participants (Clause 2 of Article 53 of the Civil Code of the Russian Federation). A person who, by virtue of the law or the constituent documents of a legal entity, acts on its behalf must act in the interests of the legal entity he represents in good faith and reasonably. It is obliged, at the request of the founders (participants) of a legal entity, unless otherwise provided by law or agreement, to compensate for losses caused by it to the legal entity (Clause 3 of Article 53 of the Civil Code of the Russian Federation).

When applying the norm established by sub. "n" clause 1 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 this information include information about their location? It does not follow from the Law that this information is mandatory. Thus, there may be cases where there is no information in the Unified State Register of Legal Entities 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 corresponding type.

At the same time, paragraph 3 of this article provides that changes in 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 carrying out state registration is notified of such changes. However, legal entities and their founders (participants) do not have the right to refer to the lack of registration of such changes in relations with third parties who acted in accordance with 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 an organization, you may not find the addresses of separate divisions of the organization.

Along the way, another significant question arises: what documents of a legal entity are the constituent documents? Clause 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 cases provided for by the Law, a legal entity that is not a commercial organization may act on the basis general position about organizations of this type. The constituent agreement of a legal entity is concluded, and the Charter is approved by its founders (participants). A legal entity created in accordance with the Civil Code of the Russian Federation by one founder acts on the basis of the Charter approved by this founder. Thus, information about the location of separate divisions 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 division of an organization— any Terrya unit torially separated from it, according to locationthe location of which is equipped with stationary workwhose places." Recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified division. In this case, a 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 division of a Russian organization”(the place where this organization carries out its activities through its separate division).

A separate division of an organization means any territorially separate division 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 division 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 “a separate division of an organization” is revealed using the following concepts:

- territorial isolation,

-workplace,

—equipped workplace.

Concept “territorial isolation of subsectionleniya" is absent both in the Tax Code of the Russian Federation and in the Civil Code of the Russian Federation. First of all, we need to define the concept "territorial isolationlaziness."Dictionary Russian language 1 defines the relevant words, in particular, as follows and gives examples of the use of these words:

territory— limited land space (factory territory);

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

Wherein "space" defined, in particular, as:

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

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

Thus, "space" can be defined as a place that is limited by visible limits, since when defining territory, we are talking about limited space.

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

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

Note!

In Chapter 25 “Organizational Profit Tax”, exceptthe concept of “territory” the concept of “aquato” is usedriya."

So, in accordance with paragraph 3 of Art. 261 of the Tax Code of the Russian Federation, the procedure provided for in this paragraph applies to expenses for the development of natural resources related to the part of the territory (water area) provided for by the corresponding license. In this case, the taxpayer must keep separate records of such expenses for the relevant part of the territory (water area).

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

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

For your information!

According to the above-mentioned explanatory dictionaryvatoria— surface of the body of water, waterema; water area (port water area, Mi water areamoat ocean).

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

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

Concept "workplace" is related to labor relations and should be used in the meaning in which it is used in labor legislation. Article 209 of the Labor Code of the Russian Federation defines that a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Thus, this concept is not associated with the presence of any property (including depreciable property) necessary, in particular, to carry 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 workplacesmi"! The answer to this question is important, in particular, when determining the date of creation of the workplace (for example, if the organization rents production premises). 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 them to perform their job duties. In addition, Art. 163 of the Labor Code of the Russian Federation stipulates that the employer is obliged to provide normal conditions for employees to fulfill 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 workers with premises, structures, machines, technological equipment, equipment, tools, technical documentation and other means necessary for the performance of their labor duties.

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

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

The specifics of tax payment by taxpayers who have separate divisions 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 subject to credit 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 units. Clause 1 of Art. 289 of the Tax Code of the Russian Federation establishes that taxpayers, regardless of whether they have an obligation to pay tax and (or) advance payments for tax, the specifics of calculation and payment of tax, are obliged, at the end of each reporting and tax period, to submit to the tax authorities at the place of their location and the location of each separate subdivisions corresponding tax returns 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, representativedepartment, bureau, office, agency, any otherany separate unit or other place of operationactivity of this organization, through which the organization regularly carries out business activities on the territory of the Russian Federation.

When applying the concept "separate subsectionorganization" For profit tax purposes, the following questions arise, in particular:

Can any territorially isolated unit, at the location of which one stationary workplace is equipped, be a separate subdivision of an organization?

Is a separate division of an organization created if, at the location of a territorially separate division, stationary workplaces are equipped but not occupied by employees? That is, the corresponding 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 of production premises or in the case of their rental).

In the definition of a separate division of an organization, the noun "subdivision" used in singular, A "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 unit, at the location of which only one stationary workplace is equipped (for example, a post office), we cannot talk about creating a separate unit 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 unit, since jobs have not yet been created in it (workers who must take these places). It’s another matter if workers have already been hired and must arrive at the workshop to 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 "aboutseparate division of a legal entity (organization)tion)", 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. Branch and representative office are subdivisions of a legal entity, its components. These units must be organizationally separate within the legal entity and located outside its location.

2. The difference between both departments lies in the range of tasks performed. The branch carries out the functions of a legal entity, which should be understood as the types of production and other activities of the legal entity, which it has the right to engage in in accordance with the law and the constituent documents of the legal entity. The mission of the representative office is limited. They consist of representing and protecting the interests of a legal entity, that is, functions carried out within the framework of the institution of representation, by virtue of powers based on a power of attorney.

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

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

6. All separate divisions of a legal entity that meet the criteria provided for by the Civil Code of the Russian Federation, regardless of their name (branch, agency, correspondent bureau, etc.) are subject to the legal regime of either a representative office or a branch. For tax purposes, there are no differences 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 norm allows for state control over the activities of a legal entity outside its location for the purposes of taxation and protection of the interests of creditors, as well as for other purposes provided for by law.

In connection with the above, it is necessary to state that all divisions 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 submit or untimely submission of information necessary for inclusion in state registers, as well as for submission of false information, applicants, legal entities and (or) individual entrepreneurs bear responsibility established by the legislation of the Russian Federation (Clause 1 of Article 25 of Law No. 129-FZ).

The registration authority has the right to apply to the court with a demand for the liquidation of a legal entity in the event of violations committed during the creation of such a legal entity. gross violations 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 of 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 that are 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 divisions located on the territory of the Russian Federation is obliged to register with the tax authority at the location of each of its separate divisions (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 division is submitted within one month after its creation (Clause 4 of 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 the 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 taken into account that the provisions of Art. 117 of the Tax Code of the Russian Federation also applies to the conduct of activities by an organization through its separate divisions.

The taxpayer's submission to the tax authorities of a list of its separate divisions of the Tax Code of the Russian Federation is not provided for. 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 profit tax purposes during the tax period?

Clause 1 of Art. 289 of the Tax Code of the Russian Federation establishes that taxpayers, regardless of whether they have an obligation to pay tax and (or) advance payments for tax, the specifics of calculation and payment of tax, are obliged, at the end of each reporting and tax period, to submit to the tax authorities at the place of their location and the location of each separate divisions corresponding tax returns. An organization, which includes separate divisions, at the end of each reporting and tax period submits to the tax authorities at its location a tax return for the organization as a whole with distribution among separate divisions (clause 5 of Article 289 of the Tax Code of the Russian Federation).

Organizations submit a Declaration to the tax authority at the location of the separate divisions, as well as a calculation of the amount of tax payable at the location of this separate division. The number of calculations depends on the number of separate divisions. Appendices No. 5a are presented for all separate divisions, including those liquidated during the current tax period. Consequently, the sum of data on line 010 of Appendix No. 5a represents 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 the separate divisions and, consequently, the specified data? If the Declaration is not submitted in full at the location of the separate subdivision (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), corresponding liability for this violation is not provided. This violation is qualified as a violation of the rules for preparing a tax return.

Before the entry into force of the relevant norm of the Law dated 07/09/99 No. 154-FZ “On making changes and additionsamendments to part one of the Tax Code of the Russian Federationwalkie-talkie" Art. applied 121 of the Tax Code of the Russian Federation, according to which violation of the rules for drawing up a tax return by a taxpayer, that is, non-reflection or incomplete reflection, as well as errors leading to an understatement of the amount of taxes payable, entail a fine of five thousand rubles.

We also note that in case of failure to submit a Declaration at the location of a separate subdivision and, accordingly, failure to pay tax at the location of a separate subdivision, Art. 122 “Non-payment or incomplete payment of tax amounts” Tax Code of the Russian Federation. Clause 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 underestimation of the tax base, other incorrect calculation of taxes or other misconduct(inaction) entails a fine of 20 percent of the unpaid tax amounts. Acts provided for in clause 1 of this article, committed intentionally, entail a fine in the amount of 40 percent of the unpaid tax amounts (clause 3 of 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 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 unlawful actions (inaction), which may include failure to submit Declarations at the location of the separate divisions of the organization (since the submission of the Declaration at the location of the 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 the 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 toprovisions of paragraph 2 of the Determination of the Constitutional Court of the Russian FederationRussian Federation dated July 4, 2002 No. 202-O.

According to this Definition, the question of the constitutionality of tax legislation provisions that provide for the possibility of state bodies applying 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 December 17, 1996 in the case of checking the constitutionality of paragraphs 2 and 3 of the first part of Art. 11 of the Law of the Russian Federation “On federal tax authoritiespolice" 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 of the taxpayer’s obligation to pay a certain tax established by law. Failure to pay the tax on time must be compensated by paying off 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, to the amount of tax not paid on time, the legislator has the right to add an additional payment - a penalty as compensation for losses to the state treasury as a result of shortfalls in receiving tax amounts on time.

Other measures, namely the collection of fines, by their nature go beyond the scope of tax obligations. They are not restorative, but punitive in nature and are punishment for a tax offense, that is, for an unlawful guilty act provided for by law, committed intentionally or through negligence. In proceedings regarding a tax offense, both the fact of committing such an offense and the guilt of the taxpayer must be proven.

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

In accordance with Art. 106 of the Tax Code of the Russian Federation, a tax offense is recognized as an unlawful (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. Absence of guilt of a person in committing a tax offense Art. 109 of the Tax Code of the Russian Federation refers to circumstances that exclude him from being held accountable. Consequently, the need to establish the taxpayer’s guilt in order to hold him accountable is expressly 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 verifying the constitutionality of paragraph 2 of Art. 1070 of the Civil Code of the Russian Federation expresses the legal position according to which the absence of guilt in the event of a violation of obligations in the public legal 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 elements of an offense, including a tax offense, as a basis for liability would also contradict the nature of justice. The court, in connection with holding taxpayers accountable for violation of tax obligations based on the principles of adversarial and equal rights of the parties, cannot limit itself to a formal statement of only the fact of violation of these obligations, without identifying other circumstances related to it, including the presence or absence of guilt of the relevant entities, in which no matter what form it appears.

All the above 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 mandatory for courts, other bodies and officials when applying their provisions federal laws, providing for liability (sanctions) for committing 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 understatement of the tax base, other incorrect calculation of tax or other unlawful actions (inaction) entail the collection of a fine in the amount of 20 percent of the unpaid tax amounts, must 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 and this Determination that remain in force.

In addition, it should be taken into account that in accordance with the Determination of the Constitutional Court of the Russian Federation dated 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 tax offenses that are not sufficiently differentiated from each other, cannot be used simultaneously as a basis for holding people accountable for committing the same illegal actions.

So, in connection with the above, how legitimate is the 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 divisions and 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 payment of tax to the budgetof a subject of the Russian Federation at its location, taking into accountattributable to these divisions producedin a timely manner. Should in this case for failure to paythat tax at the location of the separate subdivisionsdivisions apply Art. 122 of the Tax Code of the Russian Federation and at the same timepenalties will be charged in accordance with Art. 75 of the Tax Code of the Russian Federation?

Federal Law dated July 29, 2004 No. 95-FZ “On outsideintroducing amendments to parts one and two of the Tax Code of the Russian Federation and invalidating certain legislative acts (provisions of legislative acts) of the Russian Federation on taxGah and fees" amendments have been made to paragraph 1 of Art. 284 Tax Code of the Russian Federation. In this regard, from January 1, 2005, the tax amount 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 includes separate divisions makes payments of advance payments, as well as amounts of corporate income tax to the federal budget at the place of its location, and to the budgets of the constituent entities of the Russian Federation - at the place of its location and at the location of each of its separate divisions.

Separate divisions of an organization may be located on the territory of one subject of the Russian Federation. Is a penalty accrued 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 named subject at the location of the specified separate divisions?

Clause 1 of Art. 75 of the Tax Code of the Russian Federation determines that a penalty is recognized as the amount of money established by the named article that a taxpayer, fee payer or tax agent must pay in case of payment of due amounts of taxes or fees, including taxes paid in connection with the movement of goods through customs border of the Russian Federation, at a later date than those established by the legislation on taxes and fees.

Thus, penalties are assessed only in the event of late payment of due tax amounts. Obviously, the amount of tax due is understood as the amount of tax paid in full to the corresponding 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 tax payment (for example, at the location of the organization or at the location of its separate divisions). In this case, the place where the tax is paid does not matter. Therefore, in case of timely payment of tax, no penalty is charged to the corresponding budget.

Article 75 of the Tax Code of the Russian Federation stipulates that the taxpayer himself must pay the tax. Which person is recognized as a taxpayer? Article 19 of the Tax Code of the Russian Federation provides that taxpayers and payers of fees are 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 divisions of Russian organizations fulfill the obligations of these organizations to pay taxes and fees at the location of such branches and other separate divisions.

This means that, although separate divisions of Russian organizations may fulfill the duties of the named organizations in paying income taxes at the location of these separate divisions, it is not the separate divisions of the organization that are recognized as taxpayers, but the organization itself.

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

The terms and procedure for paying income tax and tax in the form of advance payments are established by Art. 287 Tax Code of the Russian Federation. Taxpayer settlements with the budget from July 1, 2005 are carried out in accordance with the Recommendations on the procedure for maintaining a database in tax authorities "Calculations from budgetby the way"(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, fee payers and tax agents in tax authorities (approved by Order of the Ministry of Taxes of Russia dated 06/05/2002 No. BG-3-10/411).

Consequently, before January 1, 2005, if the organization and its separate division are located in the territories of various municipalities, untimely payment of the tax at the location of the separate division to the municipal budget means late payment of the tax to this budget, since, according to the above recommendations, pay at the location organization, the corresponding amount of tax to the budget of the municipality on the territory of which a separate division 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 this date the income tax is not credited to the budgets of municipalities.

In connection with the above, 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 for the tax amounts not received at the location of these divisions , the penalty is not accrued if the following condition is met: the organization submits to the tax authorities at the location of the specified separate divisions documents confirming the fact of payment of income tax in the full amount at its location, confirmed by the tax authority at the location of the organization.

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

Thus, even after January 1, 2005, the concept "a separate division of an organization" widely used for corporate income tax purposes. This applies to both 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 unit of an organization as its separate divisions has great importance when applying the provisions of Chapter 25 of the Tax Code of the Russian Federation.

The general conclusion is that each division of an organization, classified as its separate divisions in accordance with the Civil Code of the Russian Federation, is recognized as a separate division in accordance with the Tax Code of the Russian Federation. Moreover, since the concept of a separate division in the Tax Code of the Russian Federation is broader than in the Civil Code, not every separate division taken into account for tax purposes can be recognized as a separate division from the point of view of civil legislation. Moreover, for profit tax purposes, not only existing but also separate divisions liquidated during the tax period are taken into account.

In this regard, 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 advisable not to take into account these liquidated divisions. Moreover. The need to account for separate divisions of an organization liquidated during the tax period does not directly follow from the Tax Code of the Russian Federation (in particular, from the provisions of paragraph 2 of Article 288 of the Tax Code of the Russian Federation). The concept of “liquidated separate division of an 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, we can conclude that the profit of an organization is distributed only between the organization itself without its separate divisions and each existing (and not liquidated) separate division. Thus, it can be recognized that accounting for liquidated divisions for profit tax purposes is unjustified. At the very 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 currently the tax authorities’ provisions in paragraph 2 of Art. 288 of the Tax Code of the Russian Federation are interpreted not in favor of the corporate income tax payer, 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 Sci. Russian Language Institute: Russian Cultural Foundation). - M.: Az, 1993. 960 p.).

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

Structural territorially separate division of an organization

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

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

The list of required features is short:

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

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

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

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

Legal status a separate unit follows from its dependent status:

1. The rights of the dedicated part of the company are significantly limited compared to the functionality of the parent organization.
   For example, although the Supreme Arbitration Court has already been disbanded, the rule established by it in information letter No. 34 dated May 14, 1998 remains in force: separate divisions have the right to file statements of claim to court only if they act on behalf of the organization. And, as indicated in the appeal ruling of the Tyumen Regional Court dated June 4, 2012 No. 33-2442/2012, separate divisions are not recognized as proper defendants, although Art. 29 of the Code of Civil Procedure of the Russian Federation and allows for filing a claim in court at their location.
2. The activities of separate divisions are the same work that the company performs in accordance with the type codes assigned to it economic activity, as well as the activities of employees (secretaries, lawyers, accountants, etc.) to create conditions for carrying out such work or only part of such activities. Granting separate units the authority to carry out established species activities are carried out by a legal entity.
3. Separate units are intermediaries in labor relations, not parties to them. So, in the definition Supreme Court dated 03.11.2006 No. 5-B06-94 states that the separated part of the company is not endowed with the legal capacity of a legal entity, and therefore separate divisions cannot act as employers.

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

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

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

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

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

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

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

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

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

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

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

The procedure for creating a separate division

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

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

For example, the Law “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ defines the following decision-making procedure:

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

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

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

Sample regulations on a separate division of LLC, JSC

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

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

Reporting of separate divisions in 2017-2018

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

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

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

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

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

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

Organizations have the right to create their own separate divisions: branches and representative offices. Their areas of activity and functions may be different. The main features of a separate division of a legal entity in 2017, as in previous years, are provided for in Article 55 of the Civil Code of the Russian Federation and paragraph 2 of Article 11 of the Tax Code of the Russian Federation. Let's look at them in detail.

Signs of a separate unit

The definition of a separate division is contained in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. If a subdivision does not meet the criteria specified in this norm, it is not separate. This conclusion is confirmed by the Financial Department of Russia in letter dated August 18, 2015 No. 03-02-07/1/47702.

The main criterion for a separate division of a legal entity is its location outside the location of the parent organization. This follows from both civil and tax legislation of Russia.

The main purpose of the representation of a legal entity is to represent the interests of the organization and their protection ().

The branch has all the functions of the parent organization, including representative offices ().

It is possible to create other types of structural units.

Separate divisions are not independent organizations. Their directors are assigned to the parent organization.

The director of a separate division has a power of attorney to exercise powers on behalf of the organization, and not on behalf of the separate division, because it is not recognized as the sole executive (or other) body of a legal entity.

Information about separate divisions is reflected in the Unified State Register of Legal Entities.

Consequently, we come to the conclusion that a separate division of a legal entity is a branch, representative office or other division of an organization, the location of which does not coincide with the parent organization.

According to the Financial Department of Russia, the separation of a branch (representative office) from the parent organization occurs if the addresses of the division and the parent organization are different (Letter dated August 18, 2015 No. 03-02-07/1/47702).

Stationary workplace

A separate division exists in the case of creating a workplace. Such a place must be stationary. The absence of appropriate places indicates that a separate unit has not been created.

For example, the activities of the created unit are related to the traveling nature of the work. If, at the same time, stationary workplaces to which workers need to arrive at any frequency are not created, the division is not recognized as separate.

The workplace organized by the employer must operate for at least 1 month. If the period is shorter, the fact of creating a separate division is absent.

In addition, the territory where the created workplace is located must be under the control of the parent organization.

Property of separate divisions of a legal entity

Separate divisions are not legal entities and do not have their own property. The necessary property is provided to them by the parent organization.

In this regard, for example, a separate division of a legal entity may be a subject of administrative responsibility, act as a participant in procurement for state or municipal needs, etc.

For the above reason, it is possible to impose foreclosure on the debt of the parent organization on the property with which the separate division is allocated. On the contrary, for debts arising as a result of the activities of a separate division, the organization is liable with its property.

Please note that from December 29, 2015, separate divisions of LLCs and joint stock companies do not need to be included in the constituent documents (see, for example, Letter of the Russian Tax Service dated March 6, 2015 No. SA-4-14/3666@).

On-site tax audit of a separate division

Legal aspects Such verification is established by paragraph 7 of Article 89 of the Tax Code of the Russian Federation:

• an on-site inspection of federal taxes and fees for a separate division can only be carried out together with an inspection of the parent organization;
• payment of taxes established in the region (municipal entity) for a separate division may be the subject of a separate audit;
• You cannot conduct more than two on-site inspections in 1 calendar year;
• the period for a separate inspection of a separate unit should not exceed 1 month.

As strange as it may sound, it is possible to create a separate unit unintentionally. And the worst thing is that such an “unintentional” creation of a separate unit can lead to negative consequences. In this article we will look at such cases, which will help our readers avoid negative consequences.

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

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

When a separate division is considered created

A separate division is characterized by two characteristics:

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

Let's look at these signs in more detail.

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

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

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

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

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

Sign two. The Tax Code does not define territorial isolation. However, in our opinion, a division will be considered territorially separate if its location address differs from the address of the parent organization indicated in the constituent documents.

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

Separate division, branch, representative office

Civil legislation distinguishes two types of separate divisions: branch and representative office.
A representative office is a separate division of a legal entity located outside its location, which represents the interests of the legal entity and protects them (Clause 1 of Article 55 of the Civil Code of the Russian Federation).

The concept of “branch” is somewhat broader than the concept of “representative office”. A branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office (Clause 2 of Article 55 of the Civil Code of the Russian Federation).

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

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

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

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

Registration or notification?

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

What if a separate division is created, but activities are not conducted through it? If we interpret this norm literally, then as long as the activity is not carried out through a separate division, there is no need to submit an application for registration. However, if, for example, two months after the creation of a separate division, the organization begins to conduct activities through it, then it will need to register. Do it without breaking deadline in this case it will be impossible. Therefore, the right decision would be to submit an application for registration within a month from the date of creation of a separate division, even if activities are not yet conducted through it.

In addition to filing an application for registration, the organization is obliged in all cases, within a month from the date of creation of a separate division, to report this to the tax authority at the location of the organization. The closure of a separate division must also be reported to the tax authority within a month (subclause 3, clause 2, article 23 of the Tax Code of the Russian Federation). The message is submitted to the tax authority in form N S-09-3, approved by order of the Federal Tax Service of Russia dated April 21, 2009 N MM-7-6/252@ (clause 7 of article 23 of the Tax Code of the Russian Federation).

If an organization has created a separate division on the territory of the municipality where the organization itself is located, then there is no need to re-register (clause 1 of Article 83 of the Tax Code of the Russian Federation). In this case, it will only be necessary to submit a message about the opening of a separate division in the manner prescribed by subparagraph 3 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation.

And if several separate divisions of an organization are located in the same municipality in territories under the jurisdiction of different tax authorities, the organization can be registered by the tax authority at the location of one of its separate divisions, determined by the organization independently (clause 4 of Article 83 of the Tax Code of the Russian Federation) .

To do this, the organization must inform in writing which tax authority it has chosen for registration at the location of the separate division. Moreover, you need to inform the tax authority that the organization has chosen for registration. This can be done using the recommended message form developed by the Federal Tax Service of Russia (KND N 1111051) (annex to the order of the Federal Tax Service of Russia dated March 24, 2010 N MM-7-6/138@).

“Legal” and “actual” addresses

Nowadays, such a common concept as the legal address of an organization is quite common. When we say legal address, we mean the address of the location of the organization.

The location of the organization is determined by the place of its state registration. And the state registration of an organization is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the organization without a power of attorney (Clause 2 of Article 54 of the Civil Code of the Russian Federation).

In other words, the address of the organization’s location is the address indicated in the constituent documents.
The actual address is the address where the organization is located and actually operates.
According to some territorial tax authorities, the difference between a “legal” address and an “actual” one, in essence, is the creation of a separate division. That is, they believe that the actual address is not the organization itself, but its separate division.

In our opinion, this approach is incorrect. A separate division, first of all, must be territorially separated from the parent organization. And in a situation where an organization operates at an address different from that specified in the constituent documents, a separate division is not created, since in this case there is no parent organization (there is no one at the “legal” address, and activities are not conducted there). That is, to recognize the creation of a separate division, there must be a parent organization.
However, in order to avoid unnecessary and unnecessary disputes with the tax authorities, we recommend making changes to the constituent documents by changing information about the location of the organization.

Under what article is liability?

The Tax Code of the Russian Federation has two articles related to registration.
Article 116 of the Tax Code of the Russian Federation provides for a fine of 5,000 rubles for violating the deadline for filing an application for tax registration. If the deadline is violated for more than 90 days, the fine will double and amount to 10,000 rubles.
Let us immediately make a reservation that for failure to notify the tax authority about the creation or closure of a separate division Tax Code responsibility has not been established.
Article 117 of the Tax Code of the Russian Federation provides for liability for conducting activities without registering with the tax authority.

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

There is an opinion that the objective side of Article 117 of the Tax Code of the Russian Federation covers only the conduct of activities without registration in general, and not a separate unit. That is, if an organization is registered with the tax authority, then it cannot be held accountable for conducting activities through a separate division without registering with the tax authority at its location (resolution of the Federal Antimonopoly Service of the Moscow District dated June 20, 2007 N KA-A40/5386 -07, dated 10/05/2007 N KA-A40/10377-07, Federal Antimonopoly Service of the North-Western District dated 04/29/2004 N A66-6713-03).

However, not all courts share this opinion, for example, the Federal Antimonopoly Service of the Far Eastern District confirmed the legality of holding a taxpayer liable under Article 117 of the Tax Code of the Russian Federation for conducting activities through a separate division without registration (resolution dated September 3, 2008 N F03-A04/08-2/3593 ).

In conclusion, as you expand your business, do not forget to comply with the obligations imposed by tax laws, this will help you avoid unnecessary disputes and save money.