Why create a separate division of the organization. Separate divisions of the organization

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

What is a separate division?

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

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

Signs of a separate division

OP meets two main characteristics:

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

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

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

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

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

Functions and goals of discovery

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

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

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

Varieties

A separate subdivision includes two forms:

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

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

How to open a separate division

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

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

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

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

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

Do I need to register a separate subdivision?

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

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

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

Creation of OP in terms of taxation

The creation of an EP entails certain tax consequences:

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

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

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

Timing

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

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

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

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

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

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

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

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

It happens that a newly formed LLC does not have an office that is not its own or rented. In this case, it is registered only at the legal address. For example, at the address of the head or founder of the organization. As long as the activity has not yet begun, and the correspondence, including from official authorities, arrives on time, this is not a problem. However, when an LLC begins to operate, there is a need for a physical location.

Need to register an LLC? Only our specialists guarantee saving time and money when creating a new LLC.

In some cases, the nature of the work of the organization allows you to do business remotely, right from home, but when it comes to shops, warehouses and offices, the activities of the enterprise begin to mean work at the address. This situation implies the need to open a separate division.

Or another situation. You need to expand your business beyond your hometown. Whatever activity you are talking about, you will need to legally correctly draw up a new place.

There are several options for this design. You can register a branch, representative office or separate subdivision. This article will focus on the latter.

Separate division: implies the presence of at least one "stationary" workplace. The workplace means the conclusion of an employment contract with an employee for at least one month. Work should be controlled by the employer, and the employee himself should be at his workplace, according to his official duties. (Reason: article. 209 of the Labor Code)

Consequently, a warehouse without a permanent employee located there is not considered a separate subdivision. Similarly, the following are not considered a separate division: payment terminals, ATMs, and the like.

Hired workers with whom cooperation is carried out remotely are also not considered “stationary”. Therefore, in order to conclude contracts with them, it is not at all necessary to register a separate division.

Important! If you are a sole trader, you do not need to register separate divisions. By law, individual entrepreneurs have the right to conduct their activities anywhere in the country, without reference to the place of registration. If the entrepreneur works on UTII or using a patent, he must register with the tax service at the place of business.

How to open a separate division for an LLC, suitable for the simplified tax system

According to article 346.12 of the Tax Code of the Russian Federation, the preferential simplified taxation system cannot be applied to organizations that have registered branches and representative offices. Here a logical question arises: how should a separate enterprise be registered so that it retains the right to the simplified tax system?

Here is what the Tax, Labor and Civil Codes say:

• According to Art. 11, NC, A separate subdivision of an organization is any subdivision that is territorially separate from this organization and has stationary workplaces.
• According to Art. 55, Civil Code Separate enterprises are characterized as separate divisions, in the form of representative offices and branches.
• (It turns out that according to the Civil Code, it is not clear what types, apart from representative offices and branches, separate subdivisions can have.)
• According to Art. 40, TC Collective agreements may be concluded in the organization as a whole, in branches, representative offices and other separate structures.

Given all of the above, the conclusion suggests itself that a clear definition of a separate enterprise simply does not exist. It turns out that during registration, the main task will be to avoid what is typical for branches and representative offices.

The following characteristics of branches and representative offices are prescribed in the legislation:

• A representative office is a separate subdivision of a legal entity located outside its location. It represents the interests and protects the legal entity
• A branch is a separate subdivision of a legal entity located outside its location. The branch performs all or part of the functions, including the functions of representation.
• Representative offices and branches are not legal entities, their data must be registered in the Unified State Register of Legal Entities and in the charter of the organization.

Such details are necessary, because if you do not understand this issue, the head, without realizing it, may register a separate division as a branch or representative office, which will deprive him of the opportunity to carry out the activities of the organization under the simplified tax system.

An organization can be classified as operating under DOS from the moment of creation (beginning of a quarter) of a separate subdivision that has the characteristic features of a branch or representative office. And according to DOS, the organization will be obligated to charge all tax fees of the general regime.

Features of opening branches and representative offices of LLC

Taking into account all of the above, it is reasonable to know what features distinguish a branch and a representative office.

1. The charter of an LLC states the actual creation of a branch or representative office. (In itself, the ability to create a branch or representative office, which can also be spelled out in the charter, does not affect the taxation system)
2. The parent organization approved the regulations on branches and representative offices.
3. Branches and representative offices have a designated manager acting by proxy.
4. Internal regulatory documentation has been developed to regulate the activities of a branch or representative office.
5. Both branches and representative offices act in the interests of the parent organization before third parties, in courts and other instances.

We conclude: that in order to be eligible for the simplified tax system, it is necessary to check that the separate subdivision being created does not have the above signs of a branch or representative office. Also, in the Regulations on separate subdivisions, it should be indicated that it is not a branch and representative office, and does not have such signs, does not engage in economic activities independently. A separate division is managed by the head of the LLC, and no director is appointed.

Registration of separate divisions of LLC in the tax office

In Art. 83.1 of the Tax Code of the Russian Federation, the Organization must register at the location of separate divisions. In addition, it is necessary to report to the tax authority about each new separate subdivision within a month and about changes in these subdivisions within 3 working days. (Article 23.3 of the Tax Code of the Russian Federation)

Therefore, when registering separate divisions of an LLC, it is necessary:

• Notify the tax authority in which the parent organization is registered (form No. С-09-3-1);
• Carry out a statement to the tax office, at the address of the unit being opened, if the address of the tax service differs from that at which the parent organization is registered.

In the event that several separate subdivisions are registered at once, located on the territory of one municipality, but on the territories of different tax inspectorates, it is possible to register all subdivisions on the territory of the tax inspectorate of one of them. For example, in one city there are several tax services, and the organization in this city plans to open four stores that are located on the territory of different NS, in this case, all four stores can be registered as separate divisions in one tax service.

If a separate subdivision changes its location address, you should report this with the indication of the new address to the National Research Institute (form No. С-09-3-1) at the place of registration of the subdivision.

Registration of separate divisions of LLC

It is necessary to register a separate subdivision in the funds at the location if it maintains a separate balance sheet, opens a current account and plans to accrue payments to employees. Registration must be completed within 30 days.

The following documents must be submitted to the Pension Fund:

• Certificate of tax registration;
• Notification of the registration of an LLC on the territory of the Pension Fund of the Russian Federation;
• A package of documents confirming the opening of a separate division, as well as a current account and balance sheet.
• application for registration (original)

In order to register with the Social Insurance Fund, you must provide copies (notarized) of the following documents:

• Certificate of tax registration;
• Certificate of GRUL;
• An order to open a separate subdivision, documents confirming the existence of a current account and opening a balance sheet;
• Letter from the state statistics of Rosstat;
• Notice of tax registration;
• The only original is the application for registration;

It is noteworthy that the simplified tax and insurance premium for employees of a separate subdivision is paid at the place of registration of the head office, and personal income tax for these employees is withheld at the place of registration of a separate subdivision.

Responsibility for violations when opening a separate subdivision

The following violations of the registration period for separate subdivisions entail penalties:

• The deadline for filing a report on tax registration has been violated - 10,000 rubles. (Art. 116 NKRF);
• A separate subdivision is functioning, but not registered - fines will amount to 10% of income, for the period of activity without registration, plus 40,000 rubles. (Article 116 of the NKRF);
• Violated terms of registration in the Pension Fund - 5000 rubles. and 10,000 rubles. (in case the registration delay lasts more than 90 calendar days); (Article 27 No. 167-FZ of 12/15/2001);
• Similar fines are provided for violations of the terms of registration in the Social Insurance Fund 5000 rubles. and 10000 rub. respectively (Article 19 No. 125-FZ of 07/24/98).

Procedure for opening a separate division

1. Make sure that you are registering a separate division, and not a branch or representative office. (Another registration algorithm)
2. Check whether the workplaces are stationary (created for a period of more than a month, employees are present there according to the labor schedule).
3. Within 30 calendar days, inform the tax authority of the parent company about the registration of a separate subdivision (form No. С-09-3-1)
4. Within 30 calendar days, register with the FPR and the FSS, if the separate subdivision has its own current account and maintains a balance.
5. Report all changes (address, name) within 3 days to the Tax Service, in the territory of registration of a separate subdivision (form No. С-09-3-1)

Let's summarize. Most often, the registration of a branch or representative office may not be justified at all. It is much easier and faster to register a separate subdivision by organizing a stationary workplace.

The necessary documents are quite simple to collect, and the registration process itself takes place at the local tax service (at the place of registration of the head office).

The entire application process can take as little as a week.

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

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

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

When a separate division is considered created

A separate subdivision characterizes two features:

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

Let's analyze these signs in more detail.

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

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

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

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

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

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

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

Separate subdivision, branch, representative office

Civil law distinguishes two types of separate subdivisions: a branch and a representative office.
A representative office is a separate subdivision of a legal entity, located outside its location, which represents the interests of the legal entity and protects them (clause 1, article 55 of the Civil Code of the Russian Federation).

The concept of "branch" is somewhat broader than the concept of "representation". A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office (clause 2, article 55 of the Civil Code of the Russian Federation).

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

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

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

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

Registration or notice?

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

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

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

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

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

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

"Legal" and "actual" addresses

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

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

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

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

What is the responsibility under?

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

Moreover, the sanctions under this article are much greater than the sanctions under Article 116 of the Tax Code of the Russian Federation. Thus, for the specified offense, Article 117 of the Tax Code of the Russian Federation provides for a fine in the amount of 10% of the income received from activities that were carried out without registration with the tax authority, but not less than 20,000 rubles. If such activities were carried out for more than 90 days, then the fine will double and amount to 20% of income, but not less than 40,000 rubles.
In other words, Article 116 of the Tax Code of the Russian Federation should be applied in cases where the organization itself submitted an application for registration, but missed the deadline. Article 117 of the Tax Code of the Russian Federation should be applied in cases where the tax authority discovered and recorded the conduct of activities by the 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 division. That is, if an organization is registered with the tax authority, then it is impossible to hold it accountable for conducting activities through a separate subdivision without registering with the tax authority at its location (Decree of the Federal Antimonopoly Service of the Moscow District dated 06.20.2007 N KA-A40 / 5386 -07, dated 05.10.2007 N KA-A40 / 10377-07, FAS of the North-Western District dated 04.29.2004 N A66-6713-03).

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

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

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

Code code of strife

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

The Civil Code, when talking about separate subdivisions, means branches and representative offices (Article 56 of the Civil Code of the Russian Federation). Their opening entails significant consequences for the participants in civil transactions and, therefore, is associated with a number of legally significant actions, namely: making a decision to open, amending the charter, making a branch seal, registering, etc.

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

Signs of a workplace

The first question that arises immediately after reading the above definition from the Tax Code of the Russian Federation is: what is a workplace outside the location of the organization? The tax code does not provide a corresponding explanation. Therefore, by virtue of the provisions of paragraph 1 of Art. 11 of the Tax Code of the Russian Federation applies the terminology of labor law. According to Art. 209 of the Labor Code, the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

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

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

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

Situation one

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

Situation two

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

Situation three

The homeworker does not form a separate subdivision, because in this case, the condition that the workplace is under the control of the employer is not met. For the same reason, there will be no separate division when sending an employee on a business trip. After all, the organization does not have the ability to control the workplace of a seconded employee. Moreover, the seconded person is subject to the internal labor regulations in force at the place of business trip (decision of the Supreme Court of the Russian Federation of June 20, 02 No. GKPI 2002-663, decision of the Supreme Court of the Russian Federation of August 27, 2002 No. KAS 02-441).

Stationary or not?

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

On the one hand, the Tax Code of the Russian Federation seems to give a definition of "stationarity": such is a workplace created for a period of more than a month. But, on the other hand, in some cases the courts apply additional signs of stationarity. Thus, the Federal Antimonopoly Service of the Central District in its resolution No. A64-5102/2013 dated 03.06.14 indicated that the organization did not have a separate subdivision, since the technical equipment of the workplace was mobile and office space was not rented. (In parentheses, we note that the case was about construction work and in justification the court referred to the Code of Rules “Labor Safety in Construction. The Regulations on the Procedure for Certification of Workplaces for Working Conditions in Construction and Housing and Communal Services”, adopted by a resolution of the Gosstroy of Russia dated 31.03.2000 No. 26, according to which such jobs are not recognized as stationary.Therefore, in normal situations, it is still better to focus on the date of creation of the job and not bring the matter to a dispute for other signs of "stationarity").

Where does the territory end?

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

A word about responsibility

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

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

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

No need to notify funds

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

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

A separate division in the legislation of the Russian Federation. Code code of strife

The tax that is remitted to budgets of subjects of the Russian Federation. Payment of advance payments of income tax is made both at the location of the organization and at the location of each of its separate divisions based on the share of profit that falls on these separate divisions. The procedure for the distribution of profits (determination of the share) is specified in paragraph 2 of Art. 288 of the Tax Code of the Russian Federation.

An income tax return must be submitted for each separate division. If the divisions are located in the same region, the organization can submit declarations only to one of them. To exercise this right, it is necessary to notify all tax inspectorates where separate divisions are listed. This must be done before the start of the new tax period.

personal income tax and separate divisions

Organizations - tax agents are required to transfer personal income tax to the budget both at their location and at the location of each of their separate subdivisions (). Personal income tax for a separate subdivision is determined based on the amount of taxable income accrued and paid to employees of this subdivision.

If a separate subdivision is not allocated to a separate balance sheet, the head organization at the place of registration of the subdivision must transfer personal income tax to the budget (letter of the Ministry of Finance of the Russian Federation of March 29, 2010 No. 03-04-06 / 54).

Personal income tax reporting for employees of a separate subdivision must be submitted at its location (letters of the Ministry of Finance of the Russian Federation of 08/07/2012 No. 03-04-06 / 3-222, of 12/16/2011 No. 03-04-06 / 3-348). Information on the accrued and withheld amounts for must be submitted no later than April 1 ().

Insurance contributions to the Pension Fund and the FSS of the Russian Federation

Separate subdivisions pay insurance premiums on their own and submit insurance premium calculations to the FSS and PFR if the following conditions are simultaneously met:

• subdivisions are located on the territory of the Russian Federation; divisions have a separate balance sheet;
• departments have their own current account; divisions accrue payments and other remuneration in favor of individuals.

If at least one condition is not met, the obligation to pay contributions and submit reports passes to the parent organization (letters of the FSS of the Russian Federation dated 05.05.2010 No. 02-03-09 / 08-894p, the Ministry of Health and Social Development of Russia dated 03.09.2010 No. 492-19).

It is also necessary to register a separate subdivision in funds only if the four listed conditions are met (clause 12 of the Resolution of the Board of the Pension Fund of the Russian Federation of October 13, 2008 No. 296P, clause 1 of the Resolution of the FSS of the Russian Federation of March 23, 2004 No. 27).

Tax on property of separate subdivisions

The procedure for paying property tax by separate divisions is enshrined in. Separate divisions account for movable property and pay the corresponding tax if they have a separate balance sheet.

If the subdivision is not allocated to an independent balance sheet, the parent organization pays the tax on movable property (letter of the Ministry of Finance of the Russian Federation dated 01.20.12 No. 03-01-11 / 1-19).

The tax base for real estate is determined by the place of its actual location (). Accordingly, a separate subdivision must pay property tax if the property is located on its territory (regardless of the separate balance sheet).

The property tax declaration and advance payment calculations are submitted to the Federal Tax Service Inspectorate at the place of tax payment ().

Transport tax of a separate division

Paid at the location of vehicles (clause 1), which is determined in accordance with clauses. 2 p. 5
Do you have OP? When is it considered created? We will answer these questions in our article.