Separate divisions of the organization. Can we open two separate divisions Separate division 2

, September 2018.

Diana Asaturyan, lawyer at First Rostov Tax Consultation LLC.

Many organizations face the challenge of geographic expansion as their business grows. Then the question arises: how to competently delegate the company's functionality to another district, city or subject? What to open: a branch, a representative office or a separate subdivision? What tax barriers and consequences might arise?

Differences and similarities of branches and representative offices

A structural subdivision of an organization can exist as a branch, representative office (according to the Civil Code of the Russian Federation) or a separate subdivision legal entity(according to the Tax Code of the Russian Federation).

Civil law distinguishes between two types of units - a branch and a representative office (Article 55 of the Civil Code of the Russian Federation). According to this article, a representative office is a separate subdivision of a company, located outside its location, which represents the interests of a legal entity and protects them. A branch, in turn, is a separate subdivision of a legal entity located outside its location, which performs all or part of its functions, including a representative function.

Based on the definitions of these terms, we can conclude that the branch significantly exceeds the scope of authority of the representative office, and the sign of identity between them cannot be put. A branch, except for representative functions, can carry out all the actions that the parent organization does. Therefore, when making a choice in favor of a particular unit, it is necessary to understand what functionality is planned to be delegated to the unit.

However, these two types of units have much more in common. We present them below.

A branch / representative office is not a legal entity, but acts solely on behalf of the legal entity that created them.
The branch/representative office operates on the basis of the regulations on the branch (representative office) approved by the legal entity that created it. The regulation is adopted simultaneously with the decision to establish a branch or representative office. The form of the regulation on a branch/representative office is not legally approved.
Availability of property at the branch (representative office). Art. 55 of the Civil Code of the Russian Federation indicates that the parent organization endows the separate subdivision with property, but does not indicate the obligation to allocate the subdivision to a separate balance sheet and open another current account.
Heads of representative offices and branches are appointed by a legal entity and act solely on the basis of its power of attorney.
Reflection of a branch / representative office in a single state register legal entities.

The term “separate balance sheet” is not contained in the legislation, but the Ministry of Finance clarified in its letters back in 2005 that a separate balance sheet of a division is a set of indicators established by an organization for its divisions and reflecting its property and financial position at the reporting date.

At the moment, the creation of a branch or representative office must be necessarily reflected in the Unified State Register of Legal Entities, but in the charter of the organization information about branches and representative offices is optional.

To create a branch or representative office, it is necessary to make an appropriate decision, develop a regulation and carry out registration actions with the tax authority.

Registration of a branch / representative office with the tax authorities will occur automatically based on the information contained in the Unified State Register of Legal Entities. Each unit will be registered at its location.

What is a separate division

There is no definition of a branch or representative office in the Tax Code of the Russian Federation, however, Art. 11 of the Tax Code of the Russian Federation contains the concept of a separate subdivision.

According to this article, a separate subdivision is any subdivision territorially separated from it with equipped stationary workplaces.

Do not confuse the concept of "separate subdivision" with branches and representative offices, since each of the types of separate subdivisions has its own status, functions and tax implications. The order of creation is also different. Separate subdivision that meets the criteria specified in Art. 11 of the Tax Code of the Russian Federation, is considered to be created when organizing new jobs on a permanent basis at an address different from the location of the organization. And to create a branch or representative office, a decision is required general meeting members of the company, as well as the implementation of registration procedures.

The creation of a separate subdivision, unlike the creation of a branch and a representative office, is not a registration procedure. The procedure for creating a separate subdivision, which is not a branch / representative office, is much simpler. It will be enough to issue an appropriate order on the creation of a separate unit and notify tax authority application in the form No. C-09-3-1. Such a unit can be managed by the head of the parent organization. A separate subdivision is considered as such, regardless of its reflection in founding documents and from the powers with which it is vested.

To recognize a separate subdivision as such in accordance with Art. 11 of the Tax Code of the Russian Federation, the mandatory conditions are:

territorial isolation;
creation in the subdivision of jobs with signs of stationarity and equipment.

Let's figure out what it is.

The condition of territorial isolation is met if the separate subdivision is located geographically separate from the parent organization in the territory controlled by another tax authority in which the parent organization is not registered.

The second condition for recognizing a separate subdivision as such is the availability of stationary and equipped workplaces. The definition of the workplace is contained in Art. 209 of the Labor Code of the Russian Federation, which states that workplace- a place where the employee is required to be or where he must arrive in connection with his work and which is under the control of the employer. A workplace is considered to be equipped if all the necessary job duties terms. And stationary, if the workplace is created for a period of more than a month. Thus, it is the creation of an equipped stationary workplace, geographically separated from the main office, that is considered the creation of a separate subdivision.

A separate subdivision is not a legal entity, branch, representative office, does not have an independent balance sheet, does not have a current or other bank account.

Taxation for separate divisions

Having considered the features of each separate subdivision, we can conclude that the tax definition of “separate subdivision” is much broader than the “civilian” concept of a branch/representative office. It is important to understand that every branch or representative office is a separate division, but not every separate division is a branch or representative office. This is important to understand for tax purposes. Why? Because companies that have opened branches have a number of tax restrictions.

Note: a company that has a branch is not entitled to apply the simplified tax system (clause 1, clause 3, article 346.12 of the Tax Code).

But if a company has a separate division that is not a branch and has those signs of a separate division that are listed above, then such an organization has the right to apply the simplified tax system.

The Ministry of Finance in its letters has repeatedly indicated that the presence of a separate subdivision (not a branch) of an organization does not prevent the application of a simplified special regime (Letter of the Ministry of Finance of the Russian Federation of October 14, 2015, No. 03-11-06/2/58685; Letter of the Ministry of Finance of the Russian Federation of 20 June 2013 No. 03-1106/2/23305; Letter of the Ministry of Finance of the Russian Federation dated May 12, 2014 No. 03-11-06/2/22075).

Some taxpayers use subparagraph 1 of paragraph 3 of Art. 346.12 of the Tax Code of the Russian Federation in order to change the tax regime in the middle of the year - they create a branch formally, that is, only on paper. In its latest review of the practice of considering cases dated July 4, 2018, the Supreme Court in paragraph 3 indicated that the creation of a branch without the intention to conduct business through it cannot be the basis for the transition of an organization from a simplified taxation system to a general one.

The essence of the case under consideration was that the organization, for some reason, in the middle of the year wanted to switch to common system taxation. And according to paragraph 3 of Art. 346.13 of the Tax Code of the Russian Federation, taxpayers on the simplified tax system are not entitled to switch to another taxation regime before the end of the tax period. That is, the “simplifiers” can change the taxation system only from the new year. Then the organization decided to create a branch for automatic transfer to the general taxation system. The branch was created, but only "on paper". Relevant local regulations, changes were made to the Unified State Register of Legal Entities, but the organization did not carry out real activities through the branch, the head was appointed only nominally, there were no employees, and the branch did not have its own office. And the organization, in turn, has already declared a deduction for VAT refunds.

But the court recognized that the taxpayer's actions were aimed at circumventing tax laws and obtaining unreasonable tax benefits. Conclusion: the creation of a branch without carrying out real activities does not transfer an organization using a simplified taxation system to a general one.

Remember that the purpose of creating separate divisions should be to expand the business, open new outlets, increasing volumes and attracting new consumers. The maintenance of any separate subdivision requires financial and labor resources. Regardless of the chosen form of a separate subdivision, it is necessary to submit reports to one or another inspection, depending on the separate subdivision and the reporting itself. Thus, if you decide to open a separate subdivision for the company, first you will need to figure out what are the ways of life of separate subdivisions, what is the process of their creation, whether the creation of a subdivision requires registration in the Unified State Register of Legal Entities, what are the features of each type of subdivision and, most importantly what the tax implications would be.

Domestic legislation allows the opening of separate divisions by Russian legal entities, that is, branches and representative offices. The procedure for their opening and the requirements for them are described in detail in domestic regulations. Various separate subdivisions are quite widely used in economic activity. It is important to note that a separate subdivision is a subdivision that is territorially remote from the parent organization, during the functioning of which there are some features.

General provisions on separate divisions

The current civil acts of the rule-making of the Russian Federation and the Civil Code of the Russian Federation directly provide for the existence of organizations as subjects of legal relations. These persons are created to achieve certain goals, have legal capacity and property, and can also be a party in a lawsuit (Article 48 of the Civil Code of the Russian Federation). All legal entities must be registered, and information about them must be reflected in the Unified State Register of Legal Entities.

Legal entities have the ability to create separate subdivisions (Article 55 of the Civil Code of the Russian Federation). Domestic legislation distinguishes a representative office and a branch among separate subdivisions. It should be borne in mind that separate divisions are not legal entities, and therefore are deprived of the legal capacity inherent in organizations.

Information about each branch and representative office must be indicated in the Unified State Register of Legal Entities.

Among other rights, a special place is occupied by the right of each legal entity to create its own separate divisions. So, a separate subdivision of an organization is a structure located at a different address than the original organization. Such a structure does not meet the characteristics of a legal entity (Article 55 of the Civil Code of the Russian Federation).

They do not have their own constituent documents, and they work on the basis of the position of the parent organization. Head of a branch or representative office main organization power of attorney is issued.

It is important to note that the Civil Code of the Russian Federation, as well as the Tax Code of the Russian Federation, allows the creation of separate divisions both in one municipality, as well as in different settlements. In this case, a separate subdivision can be located in the same city as the original organization, as well as in the city in which other separate subdivisions are located. This conclusion is confirmed by the position of the Ministry of Finance of the Russian Federation, set out in the letter of the Ministry dated 02.09.2011 No. 03-02-07 / 1-314.

The legislation of the Russian Federation prohibits only the creation of separate divisions at the same address as the main organization. The main sign of the isolation of the unit is its address. Consequently, only one separate subdivision of the organization can be created at one address, and the creation of two separate subdivisions at one address is impossible, because both of these divisions will actually be one.

As a conclusion, it should be noted that at present there is no need to indicate all separate divisions in the constituent documents of the organization. Information about the opening of branches or representative offices is reflected in the state register. The creation of stationary jobs must be notified to the tax authorities within a month (clause 3, clause 2, article 23 of the Tax Code of the Russian Federation). It is important to remember that there is no prohibition on the creation of a separate subdivision in the same subject with the main organization or in different subjects.

"Tax Bulletin", 2010, N 3

A separate division of the organization in accordance with paragraph 2 of Art. eleven tax code The Russian Federation recognizes any subdivision territorially isolated from it, at the location of which stationary workplaces are equipped. Thus, the main qualifying feature, indicating the creation of a separate subdivision, is the fact of equipping stationary workplaces outside the location of the organization<1>. The absence of any sign of a separate subdivision listed in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, does not lead to the creation of a separate division by the organization<2>. However, almost all the signs indicated in the above definition are not as simple as they seem, and their interpretation becomes the cause of numerous disputes between taxpayers and inspectors.

<1>See the Resolution of the Thirteenth Arbitration Court of Appeal dated July 16, 2007 in case N A26-11293/2005.
<2>See Letter from the Federal tax service dated 29.12.2006 N ШТ-6-09 / [email protected]

Sign of the territorial isolation of the unit

Explanations of the concept of territorial isolation of units in tax legislation not contained. According to taxpayers, territorial isolation implies that the location of the main organization and its subdivisions are located in different administrative-territorial facilities, determined in accordance with OKATO.

In some court decisions, you can find a definition with more stringent conditions. Thus, according to representatives of the Federal Antimonopoly Service of the North-Western and North Caucasian districts, "territorial isolation means the location of a structural unit of an organization geographically separate from the head organization and outside the administrative-territorial unit of its registration, controlled by one or another tax authority" (see Resolutions Federal Antimonopoly Service of the Northwestern District dated November 2, 2007 in case N A26-11293/2005, North Caucasian District dated June 20, 2007 N F08-3590/2007-1449A in case N A63-9693/2006-C4).

This means that a subdivision is territorially isolated from the parent organization if it is located in the territory where tax accounting and tax control is carried out by a different tax authority than the one in which the organization is registered as a taxpayer.

Since the location of the organization is the place of its state registration(Clause 2, Article 11 and Article 54 of the Tax Code of the Russian Federation), a subdivision will not be considered separate if it and the organization itself are located on the territory of one administrative-territorial entity. A similar conclusion is contained in the Decree of the Federal Antimonopoly Service of the North-Western District of June 22, 2007 in case N A42-2218 / 2006.

According to the Ministry of Finance of Russia, territorial isolation from the location of the organization itself can be determined by the territory of the city, street or district in the city. This opinion has existed for a long time (see Letter of the Ministry of Finance of Russia dated August 28, 2001 N 04-01-10 / 3-87). Such territorial isolation may also consist in the jurisdiction of another territorial tax authority (see Letter of the Ministry of Finance of Russia dated 07.07.2006 N 03-01-10 / 3-149, Resolution of the Thirteenth Arbitration Court of Appeal dated 04.07.2005 in case N A56-48067 / 2004 ).

As a rule, in the clarifications of the financial authorities, the subdivision is proposed to be recognized as territorially separate if it is located:

at a different address not indicated in the constituent documents as the location of the taxpayer himself (Letter of the Ministry of Finance of Russia of 07.07.2006 N 03-01-10 / 3-149, Resolution of the Thirteenth Arbitration Court of Appeal of 04.07.2005 in case N A56-48067 / 2004 );
to a different postal address (Letters of the Ministry of Finance of Russia of December 22, 2004 N 03-03-01-04/1/184, of November 29, 2004 N 03-03-01-02/45, of November 9, 2004 N 03-03-01 -04/1/103, dated October 21, 2004 N 03-03-01-04/1-78).

The first of the proposed solutions seems to be less successful, primarily because the location of the organization itself may also differ from the address indicated in its constituent documents. In this regard, more and more often, tax and judicial authorities prefer to recognize as separate subdivisions that have a different postal address from the main one. Accordingly, the divisions of the organization located on its territory and having the same postal address with it, due to the lack of territorial isolation, cannot be considered in the sense of the Tax Code of the Russian Federation as separate -4571 / 06-C1 in case N A74-1273 / 06, Moscow District dated 08.21.2007, 08.28.2007 N KA-A40 / 8267-07 in case N A40-73186 / 06-99-353, Volga District dated 06.09 .2006 in case N A65-5878 / 2005-CA1-23, of the Ninth Arbitration Court of Appeal dated 04.27.2007, 07.05.2007 N 09AP-4826/2007-AK in case N A40-73186 / 06-99-353).

In some cases, inspectors may also pay attention to the fact that the lease agreement for the premises where the unit is located does not indicate that it is located on the territory of the main organization (Resolution of the Seventeenth Arbitration Court of Appeal dated March 19, 2007 N 17AP-1415 / 2007-AK in case N A60-32501 / 06-C6). Such cases are typical, first of all, for disputes on the recognition of enterprises' dormitories as separate subdivisions.

Thus, a division that has a different postal address compared to the location of the main organization should be considered territorially isolated. For the purposes of accounting and tax control, special attention should be paid to separate subdivisions of the organization located outside the administrative-territorial unit of registration of the main organization and, therefore, controlled by another tax authority. The organization has an obligation to register them with the tax authority (according to the rules of paragraph 1 of article 83 and paragraph 1 of article 84 of the Tax Code of the Russian Federation).

The concept of "workplace"

The definition of the workplace of the Tax Code of the Russian Federation does not contain, therefore, on the basis of paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, it is permissible to apply this concept in the meaning given to it in other branches of legislation. For this situation, it is permissible to use the concept established in Labor Code RF.

According to Art. 209 of the Labor Code of the Russian Federation, a worker is recognized as "the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer."

According to par. 2 tbsp. 20 of the Labor Code of the Russian Federation is recognized as an employee individual, entered into labor Relations with an employer. Indication of a specific workplace on the basis of Art. 57 of the Labor Code of the Russian Federation must be included in the text of the concluded employment contract. Moreover, when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, the employment contract must contain not only the place of work indicating the separate structural unit, but also its location.

A mandatory feature of the workplace is control (direct or indirect) over it by the employer. This should be understood as the right of the employer:

legally enter the premises where the workplace is equipped;
equip this place in accordance with its functional purpose (in compliance with labor protection rules);
directly exercise control over the activities of the employee, for which he must be with the latter in labor relations, formalized in the manner prescribed by law.

The requirement that the workplace be controlled by the employer makes it possible to recognize as a separate subdivision of the organization and the premises where the corresponding workplaces are equipped, but in respect of which the organization is not the owner or tenant.

Defining the concept of a workplace as "a place where an employee should be" (but not necessarily at the moment), the legislator allows to recognize as a separate subdivision the premises where stationary workplaces are equipped, but for one reason or another there are no employees of this organization, and This means that there is no work activity.

At the same time, in this case, a problem arises: what should be done if the labor activity in the premises owned by the taxpayer is carried out by employees of another organization? According to tax authorities (Letters of the Federal Tax Service of Russia for Moscow dated March 22, 2005 N 20-12 / 19402, dated November 12, 2004 N 23-10 / 72962), in this case, a separate subdivision cannot be recognized as created. The main argument for such a conclusion may be the fact that, although equipped workplaces have been created in this room, they do not imply the presence of taxpayer employees on them. Accordingly, one of the mandatory criteria for recognition is not met this place workers. Such an explanation is not universal, and the tax dispute can be avoided, most likely, only if there is evidence that these jobs were originally created for other people's employees and the organization itself never conducted its activities through this unit. In all other cases, the application of such argumentation can be called into question as not based on the norms of the law.

The definition of Art. 209 of the Labor Code of the Russian Federation applies to situations in which relations arise between an employee and an employer that are parties to an employment agreement (contract).

This circumstance allows taxpayers, when concluding between the parties of a civil law, and not an employment contract (for example, a work contract), to assert that a job has not been created. The tax authorities will be forced to additionally prove in court that an employment relationship actually took place between the parties to the contract, and in the event of a dispute related to the qualification of the contract, one should proceed from its content, and not the name. The tax authorities are not entitled to independently reclassify this type of contract from civil law to labor tax.

What workplaces can be considered equipped?

It is important to separate concepts such as "workplace creation" and "workplace equipment". Not every created workplace can be recognized as equipped from the moment of its creation. The Tax Code of the Russian Federation requires that a separate subdivision of an organization have exactly equipped workplaces.

The sign of equipment means that the workplace is functionally adapted for the type of activity for which the unit is being created, and the working conditions are suitable for the employee to be at this place.

Workplace equipment can be confirmed incl. documents about liability containing indications of the specific property entrusted to the employee. The property necessary for work can be transferred under the report to the employee and according to the act of inventory.

If special requirements are imposed on the equipment of workplaces, without which it is impossible (prohibited) to conduct business, in the absence of established by law documents, the presence of equipped stationary workplaces does not in itself lead to the formation of a separate division of the organization.

At the same time, some courts continue to insist on the following: the equipment of stationary workplaces in a separate subdivision means not only the creation of all the conditions necessary for the performance of labor duties, but also the very performance of such (labor) duties (Resolutions of the Federal Antimonopoly Service of the North Caucasus District of 20.06. 2007 N F08-3590 / 2007-1449A in case N A63-9693 / 2006-C4, of the Ninth Arbitration Court of Appeal dated 08.10.2007 N 09AP-10255 / 07-AK in case N A40-10267 / 07-141-57).

However, such a definition, in our opinion, is at odds with the norms of legislation, which distinguish between the actual procedure for equipping a workplace and the process of performing labor functions by an employee. There is no requirement in the Tax Code of the Russian Federation that the equipment of workplaces must be produced by this particular organization, and not by other persons.

Thus, a workplace should be considered equipped if it is functionally adapted for the type of activity for which it is created, and suitable for an employee to stay at this place. Sometimes special requirements are imposed on the equipment of workplaces, without which it is impossible (prohibited) to conduct business.

The fact of compliance with these requirements must be documented. The text of the Tax Code of the Russian Federation explicitly states: at the location of a separate subdivision, "stationary workplaces" must be equipped. The plural used in the text of the norm implies the presence of several, at least two jobs.

Nevertheless, there are also cases when judges did not agree with such a literal interpretation of the norm of the law and recognized a separate unit, where only one workplace was equipped. Thus, in the Resolution of the Federal Antimonopoly Service of the North-Western District of May 27, 2002 in case N A26-6342 / 01-02-12 / 178, the court indicated: from the meaning of paragraph 2 of Art. 11 of the Tax Code of the Russian Federation it follows that the plural of the term "stationary jobs" is used in connection with the possibility of creating many separate divisions.

Thus, in accordance with the literal interpretation of the above norm, a separate subdivision should be recognized as any subdivision that is territorially isolated from the organization, in which there is at least one stationary workplace.

To recognize that an organization has a separate subdivision, the equipment of one stationary workplace is considered sufficient by tax authorities, representatives of the Ministry of Finance of Russia, and some courts (Letter of the Ministry of Finance of Russia of December 19, 2008 N 03-02-07 / 1-522, Decree of the FAS Moscow district dated 23.01.2003 N КА-А41/9052-02).

In the clarification given on this occasion in the Letter of the Ministry of Taxation of Russia, such an approach, in particular, was explained as follows: “In the definition of a separate subdivision given in Article 11 of the Code, one of the criteria for such a subdivision is indeed the equipment of stationary workplaces.

But it should be borne in mind that this absorbs the concept of one equipped stationary workplace. In addition, in the definition, the phrase "workplace" is used in the singular, which would be incorrect in terms of semantic load if the legislator did not consider a unit consisting of one workplace to be a separate division of the organization.

Given the foregoing, the creation of a workplace by an organization outside its location is the basis for registration with the tax authority of an organization at the location of a separate subdivision.

In our opinion, nevertheless, one should proceed from the literal text of the current norm of the Tax Code of the Russian Federation.

For the purposes of tax control and accounting of taxpayers, the presence of a separate subdivision should be determined by the presence of two or more stationary workplaces. The legitimacy of this conclusion is supported by judicial practice some regions (Resolutions of the Ninth Arbitration Court of Appeal of June 24, 2009 N 09AP-10131 / 2009-AK, 09AP-10366 / 2009-AK in case N A40-69990 / 08-126-303).

Thus, a subdivision, at the location of which two or more stationary workplaces are equipped, can be recognized as separate.

If only one workplace is equipped at the location of the unit, there is a high probability of a dispute arising, the cause of which is the ambiguity in the interpretation of the regulatory requirements of paragraph 2 of Art. 11 of the Tax Code of the Russian Federation.

Criteria for recognizing a workplace as stationary

It is the equipment at the location of the unit of stationary workplaces controlled by the organization and intended for its employees that is the main "universal" sign of the creation of a separate unit for all organizations without exception. The fact of creating stationary jobs is a legally significant circumstance for the purposes of recognizing a separate division of an organization as created.

Therefore, when considering such disputes, the court must necessarily examine the evidence confirming the creation of stationary jobs.

Workplace in accordance with paragraph 2 of Art. 11 of the Tax Code of the Russian Federation is considered stationary if it is created for a period of more than one month.

Recognition of the workplace as stationary does not depend on the frequency of visits by the employee and the time spent on it.

Doesn't have legal value and form of organization of work ( shift method or business trip), the period of stay of a particular employee at a stationary workplace created by the organization (Letters of the Ministry of Finance of Russia dated 10.04.2009 N 03-02-07 / 1-176, dated 19.12.2008 N 03-02-07 / 1-522, Decree of the Federal Antimonopoly Service of the North Caucasian District of November 29, 2006 N F08-6161 / 2006-2552A in case N A32-38550 / 2005-23 / 1025).

Thus, taking into account the above features for tax purposes, the following comprehensive definition of the concept of a stationary workplace can be applied.

Stationary workplace- a place (including a part of the premises or premises) created for a period of more than one month, where the employee must stay or where he needs to arrive in connection with his work, which is directly or indirectly under the control of the employer.

Location of the separate subdivision

According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, the location of a separate subdivision of a Russian organization is the place where this organization carries out activities through its separate subdivision.

This rule determines the location of a separate subdivision for a Russian, but not for a foreign organization. Russian organizations in accordance with paragraph 2 of Art. 11 of the Tax Code of the Russian Federation recognizes legal entities formed in accordance with the law Russian Federation. Accordingly, foreign legal entities, companies and other corporate entities with civil legal capacity, established in accordance with the laws of foreign states, international organizations, branches and representative offices of these foreign entities and international organizations created on the territory of the Russian Federation.

For separate subdivisions of foreign organizations, the Tax Code of the Russian Federation does not establish rules for determining their location.

In separate explanations of the tax authorities, one can find the following opinion: from paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, as well as the norms of the Labor Code of the Russian Federation, it follows that one of the main signs of the creation of a separate subdivision of an organization is the implementation of its activities through its own subdivision (see Letter of the Office of the Ministry of Taxation of Russia for Moscow dated 04.01.2003 N 26-12 / 777).

In some court decisions, the main qualifying sign of the creation of a separate subdivision is considered to be its actual functioning or the ability to such functioning (Resolutions of the Federal Antimonopoly Service of the Moscow District of 04/08/2009 N KA-A41 / 2428-09 in case N A41-11518 / 08, the Ural District of 10.01. 2007 N F09-11609 / 06-C3 in case N A47-5768 / 06, Northwestern District dated November 2, 2007 in case N A26-11293 / 2005<1>).

<1>As a justification for such an interpretation, a reference is made to the Decree of the Presidium of the Supreme Arbitration Court RF dated 08.07.2003 N 2235/03. This is not correct, because this Decree does not contain a similar or similar text in its content or sound.

One cannot agree with such a position. First, the proposed "primary qualifying attribute" actually provides for two whole attributes:

"actual functioning";
"ability to actually function".

And thanks to the union "or" the presence of one of them is sufficient. Consequently, it is the second sign that can be recognized as such, since without the ability for actual functioning it is unrealistic. Consequently, again, in order to recognize a separate subdivision as created, it is not necessary to wait for the start of its "actual functioning". Secondly, the mentioned criteria are not provided for by any of the norms of the Tax Code of the Russian Federation.

Moreover, often the courts in their decisions directly indicate: "To create a separate subdivision in the sense of this term, which is used for tax purposes, it is enough to create stationary jobs, the fact of the absence of activities at these addresses has no legal significance for the qualification of disputed legal relations "(Resolution of the Thirteenth Arbitration Court of Appeal dated 07/16/2007 in case N A26-11293 / 2005).

Confirmation of the fact that employees perform labor duties in a separate subdivision is necessary only to qualify the organization’s actions through a separate subdivision (Resolution of the Federal Antimonopoly Service of the Moscow District dated 13.08.2009 N KA-A40 / 7409-09 in case N A40-92222 / 08-140-460), but not to confirm the very fact of its creation. A separate subdivision will also arise if no activity is carried out in it at all (for example, there is a room belonging to the organization, and there is only a watchman in it). Moreover, mandatory confirmation is not required that "separate divisions provided services third parties" <1>.

<1>Such a criterion can be found in the arguments of the parties in a tax dispute. For example, representatives of the tax authority insisted on the need to comply with it in case N A33-13621 / 2006 (Decree of the Third Arbitration Court of Appeal of 14.01.2008 N A33-13621 / 2006-03AP-937 / 2007).

The requirement for the need for the actual activities of the organization through its separate subdivision can be indirectly seen from the norm of paragraph 4 of Art. 83 of the Tax Code of the Russian Federation, according to which "when an organization carries out activities in the Russian Federation through a separate subdivision, an application for registration of such an organization is submitted within one month from the date of the creation of a separate subdivision to the tax authority at the location of this separate subdivision." However, in our opinion, this normative indication is not enough for such a conclusion, and its literal meaning is different.

First, in paras. 3 p. 2 art. 23 of the Tax Code of the Russian Federation provides for the obligation of an organization to report to the tax authority at its location about all separate subdivisions created on the territory of the Russian Federation "within one month from the date of the creation of a separate subdivision or the termination of the organization's activities through a separate subdivision (closure of a separate subdivision)". There is no mention of "activities through a separate division" in this case. At the same time, as in the case of paragraph 4 of Art. 83 of the Tax Code of the Russian Federation, the period is calculated precisely from the moment the separate subdivision is created.

Thus, the creation of a separate subdivision determines the obligation of the organization to register for tax purposes at its location, and this duty does not depend on the existence of activities through a separate division.

Secondly, the norm of paragraph 4 of Art. 83 of the Tax Code of the Russian Federation can be quite interpreted as follows: for the purposes of tax control and accounting, from the date of the creation of a separate subdivision, an organization is recognized as carrying out activities through this subdivision.

The situation is much more complicated with the norm of paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, containing the definition of the location of a separate subdivision of a Russian organization. Such is the place where this organization carries out activities through its separate subdivision. Accordingly, since the definition of the Tax Code of the Russian Federation refers to the equipment of stationary workplaces precisely at the location of a separate subdivision of the organization, then if the Russian organization does not operate through its separate subdivision, we will not be able to establish its location from a formal point of view, which means we will not we can also determine that the workplaces are equipped exactly at the location of a separate subdivision.

On this basis, it is quite possible to conclude that in order to recognize the fact of the creation of a separate subdivision of a Russian organization, it is necessary to properly confirm that this organization carries out activities through its separate subdivision.

Nevertheless, the Tax Code of the Russian Federation does not give a direct answer on what to do if the activities of the organization through its separate subdivision occur irregularly or episodically. In our opinion, even if the organization carried out activities through its division only once, the requirements of the Tax Code of the Russian Federation can be considered met.

It should also be noted: paragraph 2 of Art. 11 of the Tax Code of the Russian Federation determines the location of a separate subdivision only for a Russian, but not for a foreign organization. To recognize the fact of the creation of separate subdivisions of foreign organizations, the legislator does not require confirmation of the conduct of activities through them.

Identified dual approach in regulation activities of separate subdivisions of Russian and foreign organizations can be eliminated. To solve this problem, we can use the alternative approach we previously identified to the literal interpretation of paragraph 4 of Art. 83 of the Tax Code of the Russian Federation.

Thus, from the date of the creation of a separate subdivision, the organization is recognized as carrying out activities through it, and the submission to the tax authority of evidence confirming the actual implementation of activities through a separate subdivision is not required for either foreign or Russian organizations.

The moment of creation of a separate division

The answer to the question, from what moment a separate subdivision of the organization should be considered created, is important for the correct fulfillment of the obligations of the organization provided for in the Tax Code of the Russian Federation:

notify in writing to the tax authority at the location of the organization about all separate subdivisions created on the territory of the Russian Federation (clause 3, clause 2, article 23 of the Tax Code of the Russian Federation);
register with the tax authority at the location of each of its separate subdivisions (paragraph 2, clause 1, clause 4, article 83 of the Tax Code of the Russian Federation).

According to a number of court instances, the period calculated "from the date of creation of a separate subdivision" begins to flow precisely from the moment the organization equips territorially separate stationary places for carrying out activities through a separate subdivision (see, for example, the Resolution of the Federal Antimonopoly Service of the North-Western District of October 15, 2007 in case N A56-40913 / 2006, Ural District of October 27, 2008 N F09-7766 / 08-C3 in case N A60-2706 / 08, North Caucasian District of November 29, 2006 N F08-6161 / 2006-2552A in the case N A32-38550 / 2005-23 / 1025, of the Thirteenth Arbitration Court of Appeal dated July 16, 2007 in case N A26-11293 / 2005).

In passing, we note: here, too, the courts, firstly, pay attention precisely to the fact of creating a workplace, and not to the start date actual work an employee on it; secondly, they mention the workplace not only in the plural, but also (in some cases) in the singular. A similar approach can be found, for example, in the Decrees of the FAS of the Far Eastern District dated 10/13/2009 N F03-5338 / 2009 in the case N A59-814 / 2009, the West Siberian District dated 02/13/2007 N F04-210 / 2007 (31193-A81- 3) in case N A81-3104 / 2006, the Volga-Vyatka District dated April 27, 2006 in case N A29-7451 / 2005A, of the Seventeenth Arbitration Court of Appeal dated July 11, 2008 N 17AP-3491 / 2008-AK in case N A60-2706 /2008.

The proposal to recognize the date of equipping one workplace as the moment of creation of a separate subdivision can be considered in two aspects:

from the standpoint of the sufficiency of one workplace for recognizing a separate subdivision as created (the discrepancy between this approach and the literal text of the Tax Code of the Russian Federation has already been discussed above);
in the sense that the provisions of paragraph 4 of Art. 83 of the Tax Code of the Russian Federation, the period begins to run from the date of equipping the first of the workplaces, regardless of when the remaining workplaces necessary for the normal operation of a separate subdivision were created and equipped.

Of course, the proposal itself to consider the equipment of the first workplace as the moment of creating a separate subdivision cannot be considered legitimate, because. it is not based on the norms of the Tax Code of the Russian Federation and, as already mentioned, one equipped workplace is not enough to recognize a separate subdivision as created. But at the same time, another question arises: is it possible to recognize a separate subdivision as created if not all the jobs necessary for the normal operation of the subdivision are equipped in it?

In our opinion, the conclusion recorded in the Decrees of the Federal Antimonopoly Service of the West Siberian District dated January 20, 2005 N F04-8961 / 2004 (7233-A45-27), dated January 20, 2005 N F04-8961 / 2004 (7233-A45-27), about the need to calculate the period of registration at the location of a separate subdivision from the moment a stationary workplace (and not its equipment) was created, and even more so from the moment the activity began at its location is illegal.

A similar inaccuracy is also present in the Resolutions of the Federal Antimonopoly Service of the Urals District of February 7, 2008 N F09-141 / 08-C2 in case N A07-23174 / 06, of January 10, 2007 N F09-11609 / 06-C3 in case N A47-5768 / 06 , dated 06/28/2006 N F09-5528 / 06-C7 in case N A50-44261 / 05, dated 02/14/2006 N F09-583 / 06-C7 in case N A60-28560 / 05.

The Decrees of the FAS of this district should also be recognized as incorrect, which states that "a separate subdivision should be considered created from the moment stationary jobs are created, that is, from the moment the organization begins to carry out activities at the location of a separate subdivision or the possibility of its implementation arises" (dated 10/15/2009 N F09-7950 / 09-C3 in case N A60-4829 / 2009-C6, dated 10.23.2008 N F09-7714 / 08-C3 in case N A60-1607 / 08).

Based complex analysis norms of paragraph 2 of Art. 11 and paragraph 4 of Art. 83 of the Tax Code of the Russian Federation, the moment of creation of a separate division of the organization, subject to all other conditions of this article, should be considered the date of equipment at the location of such a division, not the first, but the second stationary (intended for work for a period of more than one month) workplace.

If we talk about the universal rule, then the date of creation of a separate subdivision should be determined by the earliest document by date, which recorded the presence of all the signs established by Art. 11 of the Tax Code of the Russian Federation.

A.P. Zrelov

member of the Improvement Council

tax legislation

and law enforcement practice

at the Chamber of Commerce and Industry of the Russian Federation

What is a separate division Civil Code(Article 55 of the Civil Code of the Russian Federation) Separate subdivisions of the organization are representative offices and branches.

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

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

Territorially separate subdivision

The company specifies information about the choice of the tax authority in the notification submitted (sent) Russian organization to the tax authority at its location. When an organization creates several separate divisions in Moscow in the territories under the jurisdiction of different tax authorities, the company has the right to choose to be registered according to this reason tax authority at the location of one of the created separate divisions.

Changing the address of a separate subdivision The organization, within three days from the date of the change in information about a separate subdivision, must send a message about this to the tax authority. When the location of a separate subdivision changes, deregistration is carried out by the tax authority in which the organization was registered within five days from the date of receipt of the notification.

Separate subdivision of a legal entity: signs and procedure

A similar notification is required in the event of the closing of the company. In the latter case, the notice must be sent within a month.

Attention

The message is formatted according to f. C-09-3. Compliance with Multiple Businesses If an organization establishes multiple subdivisions within the municipality in which it operates, there is no need to re-register. The corresponding provision is enshrined in Article 83, para.

Info

In such a situation, the parent company is only obliged to send a message to the Federal Tax Service about the creation of a unit. Notification is carried out according to the rules of the 23rd article (para.

3). If several units are located in the same MO, but in the territories under the jurisdiction of different inspections, registration can be carried out control body at the location of one of them. It is determined by the parent company.

Separate divisions

Experts explain that the decision on the absence or presence of signs of such an enterprise should be carried out taking into account essential conditions contracts (provision of services, contracts, leases, etc.) that were concluded between the organization and the counterparty. All actual circumstances related to the activities carried out by Russian legal entities should be taken into account.

An organization can have many separate divisions. Legislative norms do not contain any restrictions in this regard.

Territorial isolation This is the second sign that an enterprise opened by the main organization must comply with. There is no clear definition in the legislation.

According to experts, territorial isolation implies the location of a legal entity outside the place of the main organization.

Separate divisions - briefly about the most important

The tax is paid at the location of each separate subdivision. Reports are submitted to tax office at the place of registration of the OP. If the employee has a labor contract with the parent organization, and the workplace is the territory of a separate subdivision, then income tax is paid at the location of the EP. OP. If the unit was not registered at the beginning of the month, then personal income tax on the income of employees should be paid in proportion to the share of wages accrued during work in this OP. It should be noted that OP pay personal income tax for employees and submit reports only if they allocated to a separate balance sheet and have a bank account.

Online journal for an accountant

To register a separate subdivision with the tax authority, the following documents will be required

Passport of the person submitting the documents
Power of Attorney, if documents are not submitted CEO companies
Application form С-09-3-1

Within five working days from the date of receipt of the specified message, the tax authority registers the organization at the location of its separate subdivision and issues the organization a notice of registration with the tax authority (clause 6, article 6.1, clause 2, article 84 of the Tax Code of the Russian Federation ). By the way, unlike branches and representative offices, you do not need to pay any fees when registering other units with the inspectorate.

Registration at the location of a separate subdivision

In a letter dated August 18, 2015 No. 03-02-07 / 1 / 47702, the Ministry of Finance of Russia explained that it is a separate division of the organization. One of the main features of a separate subdivision is its territorial isolation from the organization (p.
2 tbsp. 11 of the Tax Code of the Russian Federation): the address of a separate subdivision must be different from the address of the organization itself. A unit located at the same address as the organization itself is not separate. Another sign of a separate subdivision under paragraph 2 of Art. 11 of the Tax Code of the Russian Federation is the presence in it of equipped stationary jobs created for a period of more than one month. If subdivisions do not have these characteristics, they are not separate.
Accordingly, they are not subject to the obligation to register at their location (clause 4, article 83 of the Tax Code of the Russian Federation).

Registration of a separate division in the tax office

No matter how strange it may sound, it is possible to create a separate subdivision of a legal entity unintentionally. Such cases are quite common in practice.

Often this "unintentional" action entails a number of negative consequences. Consider further what constitutes a separate subdivision of a legal entity.

Definition structural subdivision a legal entity is an enterprise opened by the main organization and meeting a number of requirements enshrined in law. In order for a company to be recognized in this status, a number of conditions must be met. First of all, such an enterprise should have stationary-type workplaces, properly equipped. They will be considered created if they are formed for a period exceeding a month.
Another requirement is territorial isolation from the main organization.
Otherwise, the tax is paid by the parent organization, which also submits reports based on the results of the tax period to the tax inspectorate, in which the separate subdivision is registered. Insurance premiums(clause 11-15 of article 212-FZ) Insurance contributions to the FSS and PFR are charged on wages employees of the OP. Contributions are paid to the budget of the region in which the OP is located. Reports are submitted to the management of the Pension Fund of the Russian Federation and the branch of the FSS, in which the separate subdivision is registered. VAT (Article 174 of the Tax Code of the Russian Federation) VAT is calculated for the organization as a whole and is paid at the place of registration of the parent organization. VAT amounts are not distributed among separate subdivisions. Reporting is submitted by the parent organization at its location. The preparation of invoices received and issued by separate subdivisions has some peculiarities.

A separate division is located at the address of the parent organization

In some cases, an employee enters into an agreement with the parent organization, and conducts labor activity in a subdivision. In such situations, personal income tax is paid to the IFTS at the location of the OP.

If the registration of the unit with the tax authority was not made at the beginning of the month, the transfer of tax is carried out in proportion to the share of the salary issued to the employee for the time labor activity. It must be taken into account that the payment of personal income tax, as well as the submission of reports, is carried out only when the OP has an independent balance sheet and a bank account. Otherwise, this responsibility rests with the parent company. She deducts personal income tax and submits tax returns to the inspection in which she is registered. Insurance premiums They are charged on the basis of the salary of employees of the unit. Payment of contributions is made to the budget of the region in which the EP is located.
Transport tax (Article 363 of the Tax Code of the Russian Federation) The tax is paid to the budget of the region in which vehicles are registered. Reporting is submitted to the Federal Tax Service of the territory in which vehicles are registered. If the transport is registered with the parent organization and is operated by a separate unit, then it should put on temporary registration in this region, and pay transport tax at the place of temporary registration. Accounting statements of separate divisions Separate divisions allocated to a separate balance sheet constitute internal accounting statements, which may include:

Turnover balance sheets
Balance sheet
Report about incomes and material losses

In the IFTS, separate divisions do not submit financial statements.

For the site to work correctly, you must enable javascript support in your browser Fill out 3-NDFL! Tax resident status! SRO permit! Declaration of KIK! Services Cooperation Help About the company Contacts Site map Ask a question outside the territory of the Russian Federation, as well as to branches and representative offices. The legislation provides for the possibility of creating legal entities not only branches and representative offices (art.

55 of the Civil Code of the Russian Federation), but also such separate divisions that are not branches or representative offices in the sense of Art. 55 of the Civil Code of the Russian Federation.