NK is a separate division. What is a separate subdivision of a legal entity. Functions and purposes of discovery

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

Reasons for creating a separate division

Business expansion
Optimizing control structural units in other regions
The desire of the organization to bring production closer to sources of raw materials requirements of environmental legislation on the location of hazardous and harmful industries far from settlements

Signs of a separate subdivision

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

The equipment of a stationary workplace means the creation of all the necessary job responsibilities conditions, as well as the performance by the employee of such duties (letter of the Ministry of Finance dated July 28, 2011 N 03-02-07 / 1-265, resolutions of the Federal Antimonopoly Service of the North Caucasian District of June 20, 2007 N F08-3590 / 2007-1449A, FAS of the North-Western District from 02.11.2007 in case А26-11293 / 2005).

Separate subdivisions are divided into

Branches
Representative offices
OP on tax legislation

The company can create branches and open representative offices by decision general meeting members of the society. Branches and representative offices are separate divisions of the organization located outside the location of the legal entity itself. The main differences between a representative office and a branch of a company lie in the functions performed.

Since in the Tax Code of the Russian Federation and other branches of legislation there is no concept of "structural unit of an organization", one should be guided by clause 16 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 No. , workshops, sites, sectors, etc.

Functions of the Representative Office and the Branch Office

Representative offices exclusively represent the interests of the Company and carry out their protection, while a branch, on the contrary, performs all or part of the functions of the parent Company, including the functions of a representative office. The branch and representative office of the company are not legal entities and act on the basis of the regulations approved by the company. A branch and a representative office are endowed with property by the company that created them. Heads of representative offices and branches are appointed by a legal entity and act on the basis of a power of attorney.

Does the creation of an EP mean the conclusion of an employment contract with an employee who works outside the office?

According to Art. 57 of the Labor Code of the Russian Federation, mandatory conditions for inclusion in an employment contract are, inter alia, the place of work, labor function, conditions that determine the nature of work. When carrying out activities of a traveling nature, there are no grounds for registering an organization with the tax authority at the place of implementation of such activities (letters of the Ministry of Finance of Russia dated 01.03.2012 N 03-02-07 / 1-50, dated 28.07.2011 N 03-02 -07 / 1-265). For example, when employees visit various organizations, when installing equipment or programs, these employees do not work in the organization's office (own or rented).

The same applies to workers who work directly at home.

Homeworkers are persons who have entered into an employment contract for performing work at home from materials and using tools and mechanisms allocated by the employer or purchased by the homeworker at their own expense (Article 310 of the Labor Code of the Russian Federation).

When the organization carries out activities using the labor of a homeworker without stationary jobs, there are no grounds for registering the organization with the tax authority at the employee's place of residence.

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

According to Art. 312.1 of the Labor Code of the Russian Federation, teleworking is the performance of a labor function specified in an employment contract, in particular, outside a stationary workplace. Thereby, teleworking does not imply the equipment of a stationary workplace. Consequently, no matter how long a remote worker is involved, a separate subdivision is not formed.

An organization that concludes a contract for the performance of work by the forces of employees engaged by a third organization does not create a separate subdivision. Separate subdivision arises from the organization that provided the personnel.

The workplace must be created for more than one month

The actual time spent by a particular employee in the workplace, which is created or used by the organization outside of its location, is not of fundamental importance for the recognition of a separate unit.

The above signs collectively mean that the organization carries out activities through its separate division. For the purposes of tax control, a Russian organization at the place of such activity (location of a separate subdivision) must be registered with the tax authority (Article 83 of the Tax Code of the Russian Federation).

Date of creation of a separate subdivision

The creation of a stationary workplace can be confirmed

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

The earliest of the documents that record the presence of all the characteristics of a separate subdivision will determine the date of its creation.

If you need a special permit to conduct business authorized bodies, in particular, a license, the date of its issue can be recognized as the date of creation of a separate division, since it is from this date that activities can be carried out.

STS when registering a separate division

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

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

If the OP is not allocated to a separate balance sheet, the organization must pay insurance premiums and submit reports on them to territorial bodies PFR and FSS RF at the place of its location.

The organization, which includes the OP, must register with the tax authority at the location of each of its OP.

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Sooner or later, actively developing companies expand at the expense of territorial offices. Office, commercial premises, warehouses open outside the location of the organization are subject to state registration as separate units.

Types of separate subdivisions

Tax Code of the Russian Federation (Article 11, clause 2) refers to separate divisions any parts of the company that are not located legal address firms if they satisfy two conditions:

open for more than a month;
have stationary jobs (at least one).

Here you should distinguish between ordinary OP and branches / representative offices of the company. The latter are a kind of units, but with broader powers and functions:

Representative offices carry out a role corresponding to their name: represent the interests of a legal entity outside of its location.
Branches, as geographically separate parts of the company, have all the full functions, like the "parent" organization.

Such OPs are not completely independent, but act on the basis of separate regulations, have their own property and management bodies. And most importantly, their education is possible only through changes in constituent documents legal entity. An organization with branches loses the right to apply the simplified taxation system.

The opening of an EP that is not a branch or representative office is in the competence of the head of the organization and does not require rewriting the charter. There is no need to provide the new department with its own current account, develop regulations on the OP, appoint a manager. Accounting for this OP will also be conducted centrally. After opening, it is enough to simply register the subdivision with the FTS inspection where the legal entity is "listed".

The procedure for registering the OP on tax accounting

From the moment of the opening of a separate subdivision, legal entities are given 30 days to put it on state registration. Violation of this deadline, as well as the work of the department without notifying the tax authorities, threatens the organization with fines (Article 116 of the Tax Code of the Russian Federation):

10,000 rubles for late payment;
40,000 rubles or more (in the amount of 10% of the income received by the OP) - for the lack of registration.

The guilty official bears administrative responsibility in the form of a fine in the range of 2,000 - 3,000 rubles (Code of Administrative Offenses, Article 15.3, Part 2).

You must adhere to the correct sequence of actions. First - the opening of the OP, then - the notification of the tax office. To register a new branch, he must already have own address and at least one equipped workstation. The actual date of opening can be considered the day of admission to the department of the first employee - from this moment the countdown of the application period begins.

Registration of a separate subdivision of a legal entity consists in tax registration with the Federal Tax Service at the location of the branch to be opened (clause 1 of article 83 of the Tax Code of the Russian Federation). In theory, an organization should register with the inspectorates of all municipalities in which it opens its EP. However, in practice, everything is simpler: it is enough to apply to "your" IFTS (at the legal address of the company), and then the tax authorities independently, within five days, transfer the documents to the right place.

Application for registration of a separate subdivision

To register a separate subdivision with the tax office, you must fill out a message in the form C-09-3-1. The application form used by organizations when opening an EP and changing their data is approved by Order of the Federal Tax Service No. ММВ-7-6 / [email protected] of June 9, 2011

Form C-09-3-1 will be completed as follows. Page 1 contains information about the organization and its representative:

Page 2 is filled with data for the department to be opened:

TIN and KPP of the main organization;
page number - 0002;
name of the OP;
the actual address of the unit;
date of creation;
activity code according to OKVED;
Full name of the head of the OP, if he is appointed, his TIN and telephone number;
applicant's signature.

This sheet is filled in for each of the opened divisions.

Instructions for state registration of a separate subdivision

It is not difficult to create and register a separate division, if it is not a representative office or a branch. You don't even have to go to the tax office. The message can be sent by letter or via the Internet using the electronic digital signature of the manager.

To register a separate subdivision in 2015, follow our step-by-step instructions:

On this, the issue of creating a remote branch can be considered closed.

As for the cost of registering a separate unit, there are no state fees for such actions. Your expenses will consist only of the payment for notarial services for the certification of copies of documents.

The EP must apply the same taxation system as the main organization. As a rule, all settlements with the budget by divisions are carried out centrally from the "head" of the company. But if a branch has its own balance sheet, it can pay contributions to off-budget funds and transfer taxes (on profit, property, transport, personal income tax) for itself, submitting the necessary reports to the local authorities of the Federal Tax Service, the Pension Fund of the Russian Federation and the Social Insurance Fund.

Let us recall that the described registration procedure applies only to simple OPs that do not have representative functions. To avoid accusations of illegal opening of a branch or representative office, legal entities should avoid empowering remote divisions with broad powers.

As strange as it may sound, you can create it unintentionally. Such cases are quite common in practice. Often this "unintentional" action entails a number of negative consequences. Let's consider further what it is.

Definition

A separate structural unit of a legal entity isan enterprise opened by the main organization and complying with a number of requirements established by 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.

Nuances

It should be noted that it will be considered as such, regardless of whether the process of its formation is reflected in the constituent or other organizational and administrative documentation or not. If it started work, then the requirements of the law must be observed. For recognition, authority and will not matter.

Workplace

Its concept is disclosed in Article 209 of the Labor Code. A worker is a place where a citizen arrives to carry out his production activities. Moreover, it must be directly or indirectly controlled by the employer. Recently, the so-called "remote (virtual) offices" have become quite common. Employees of many enterprises work at home using their technical means (computers in particular).

The living space of these citizens, of course, cannot be controlled by the employer either directly or even indirectly. Accordingly, in this case, about separate subdivision of a legal entityis not created. Another very important fact should be taken into account. The workplace must be created by the legal entity itself. It does not matter whether the premises in which it will be formed will be rented or owned. For example, cleaning company sends the employee to the client's office to carry out daily cleaning for two months. In this case, there will be no creation of a subdivision, since the premises or even a separate part of it do not belong to the tenant. In this situation, the employee is considered a business trip.

Ministry of Finance opinion

The Ministry believes that consideration of each case of a potential creation of a unit should be carried out taking into account specific circumstances and factors. Experts explain that the decision on the absence or presence of signs of such an enterprise should be carried out taking into account the essential terms of 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 russian legal entities. Separate subdivisions an organization can have many. Legislation does not contain any restrictions in this regard.

Territorial isolation

This is the second characteristic that an enterprise opened by a parent organization must meet. There is no clear definition in the legislation. According to experts, territorial isolation implies the location of the legal entity outside the place of the main organization. In this case, the main address of the latter must be indicated in the constituent documentation.

Classification

What can be separate divisions? Branches and representative offices of legal entities- two main types of enterprises opened by the main organization. Each of them has a number of features. A representative office is a separate subdivision of a legal entity, which operates in a territory other than that specified in the constituent documents of the parent organization, expresses its interests and ensures their protection. The concept is disclosed in the 55th article of the Civil Code (clause 1). A branch is a separate subdivision of a legal entity, which operates in a territory different from the one, which, again, is indicated in the constituent documents of the parent organization and implements all its tasks or some specific part of them. The definition is present in the above article in clause 2. Thus, a branch is a separate subdivision of a legal entity that performs a fairly large amount of tasks.

Requirements

The legislation does not prescribe the mandatory development of provisions on the basis of which will act separate subdivisions of a legal entity. The formof this normative act, respectively, is not included in the number of unified ones. However, in practice, model clausesthat the organization can be guided by. It should also be noted that information about the created separate subdivisions must be present in the constituent documents of the parent enterprise. Relevant requirement established in clause 3 of the 55th article of the Civil Code. The norms allow the activities of units without a leader.

An important point

It should be emphasized that the implementation of the activities of the parent organization cannot be an independent subject of tax and civil law relations. They are charged with the obligation to make mandatory budgetary contributions. But in this case we are talking about the activities of the parent organization through its separate division.

Registration

The law provides for a procedure, the implementation of which ensures the recognition of the legality of the activities carried out separate subdivision of a legal entity. registration is carried out in the tax authority at the address of the location of the created enterprise. In this case, registration must be carried out within a month from the date of establishment of the enterprise. The corresponding prescription is contained in the 83rd article of the Tax Code (paragraph 4).

Features of the procedure

In practice, it happens that separate subdivision of a legal entity located out of place activities of the parent organization, did not start work within the first month from the date of its creation. In this case, there is no need to submit an application to the Federal Tax Service. If, however, after 2 months, the enterprise nevertheless began work, then it is imperative to register. At the same time, accordingly, it will not be possible to do this without violating the instructions of the Tax Code. Experts still recommend registering the subdivision within the time limit established by law, even if it will not work for the first month. Formal adherence to the procedure will avoid many problems in the future.

Notification

In addition to registering a subdivision at its location, the parent organization is obliged to notify the tax inspectorate at its location about the establishment of the enterprise. A similar notification is required in the event of a company closure. In the latter case, the notification must be sent within a month. The message is drawn up by f. S-09-3.

Compliance with requirements when opening multiple businesses

If an organization creates several subdivisions within the municipality in which it itself operates, then there is no need to re-register. The corresponding provision is enshrined in Article 83 in clause 1. In such a situation, the parent company is only required to send a message to the Federal Tax Service on the creation of a division. The notification is carried out according to the rules of the 23rd article (clause 3).

If several subdivisions are located in one MO, but in territories subordinate to various inspections, registration can be carried out by a control body at the address of one of them. It is determined by the parent company. Having made a decision, the organization sends a letter to the inspection. Accordingly, it is sent to the inspectorate located at the location of the selected enterprise. The notification is drawn up by f. KND No. 1111051.

Actual and legal address

Quite often in practice, these two concepts are identified. The legal address means the location of the organization. Its definition is regulated by the Civil Code, Article 54 (clause 2): it is established that the address of the location of the enterprise corresponds to the registration address. This procedure is carried out on the territory where the executive permanent body of the company is located. If it is absent, the registration address coincides with that of another person or structure that has the right to act on behalf of the company without a power of attorney.

The actual address is the address where the company conducts its business. Some territorial tax offices for this issue express the following opinion. They believe that the subdivision operates at the actual address, and the parent organization is located at the legal address.

Many experts consider this approach to be incorrect. As the legislation indicates, one of the key features of a subdivision is its territorial isolation. If the company operates at an address that differs from that recorded in the constituent documents, it does not meet this criterion. The fact is that in this case there is no one at the legal address, respectively, the parent organization is absent. And its presence is a prerequisite by default.

A responsibility

If about a separate subdivision of a legal entity locatedat an address different from the one at which the parent enterprise operates, is not registered in the prescribed manner, the Tax Code provides different types sanctions. First of all, for violation of the terms, the perpetrators face a fine of up to 5 thousand rubles. (Art. 116). A doubling of the collection will occur if the delay is more than 90 days. At the same time, it should be said that there are no sanctions for failure to notify the Federal Tax Service about the closure or creation of a Tax Code unit.

117th article establishes responsibility for work without registration. The amount of monetary penalties at this rate is significantly higher. Thus, Article 117 establishes that for conducting activities in violation of the registration rules, a fine of 10% of the profits obtained in the course of such work is charged. In this case, the amount of the recovery cannot be less than 20 thousand rubles. If the activity was carried out for more than 3 months, then the amount of the fine is doubled. The 116th article applies if the parent organization has not sent an application for registration within the prescribed period, and 117th norm - if the control body has identified the fact of carrying out activities without registration.

Specificity of judicial practice

It is believed that the 117th article applies to the conduct of activities without registration in general, and not specifically a unit. In other words, if the company is registered, then it is impossible to impose sanctions on it for working through another company opened by it. Meanwhile, not all judicial instances share this opinion. In order to avoid problems when expanding a business, experts recommend following all the requirements of the law

FIU

Subdivisions that have a dedicated balance sheet, p / s and pay salaries to employees are subject to registration in the fund. Registration is carried out on the basis of the Unified State Register of Legal Entities. The tax inspectorate, within five days from the date of receipt of the notification of the formation of the unit, sends them to the PFR management at the location of the OP. The fund, in turn, transfers to the policyholder 2 copies of the notification. One of them within ten days must be transferred to the FIU at the address of the parent organization.

FSS

To register in this fund, the unit must also have an independent balance sheet, employees to whom it calculates salaries, and a current account. Registration is carried out at the territorial branch of the FSS at the address of the OP. From the date of creation of the division, the parent company, within thirty days, submits an application and copies:

Holy Island about state registration.
Notifications of registration with the Federal Tax Service (separately for the OP and the parent organization).
Documents confirming the creation of the unit. This may be the charter, which contains the relevant information, a power of attorney given to the head of the EP.
Information letter from the statistics body.
Notifications of registration with the FSS of the main organization.
Certificates from the bank about r / s, if they were open at the time of contacting the fund.

Personal income tax

The tax is calculated based on the amounts paid to the employees of the relevant departments. Personal income tax is deducted to the address of the location of each enterprise opened by the parent organization. It is necessary to submit reports to the inspection at the registration address of the OP. In some cases, the employee enters into an agreement with the parent organization, and conducts work in the unit. In such situations, the payment of personal income tax is made to the IFTS at the address of the OP. If the registration of the unit with the tax authority was made not at the beginning of the month, the tax is transferred in proportion to the share of the salary given to the employee during labor activity... It is necessary to take into account that the payment of personal income tax, as well as the submission of reports, is made only when the EP has an independent balance and a bank account. Otherwise, this responsibility rests with the parent company. She carries out the deduction of personal income tax and the submission of tax reports to the inspectorate in which it is registered.

Insurance premiums

They are calculated based on the salaries of the department's employees. Payment of contributions is made to the budget of the region in which the OP is located. Reporting must be submitted to the branch of the FSS or the Pension Fund of the Russian Federation, where a separate subdivision was registered. When expanding a business, it is necessary to take into account the obligations that legislation imposes on the enterprise. These include the timely deduction of taxes and contributions to funds. Violation of the instructions will result in liability.

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

Separate subdivision in the legislation of the Russian Federation. Codex Codex

Unfortunately, lawyers are not always involved in organizing new divisions of the company. Often this work is entrusted to the sales department, for which the most important task is to quickly increase its presence in the region. And how it will be documented is the tenth thing for the "salesmen". Accordingly, if the company does not have lawyers, the accountant has to study the procedure for registration and monitor its observance.

The Civil Code, when it speaks of separate divisions, means branches and representative offices (). Their opening entails significant consequences for participants in civil turnover and therefore is associated with the commission of a number of legally significant actions, namely: making a decision on opening, making changes to the charter, making a branch seal, registration, etc.

The Tax Code is based on the needs of the budgets, so for it the criteria for a separate unit are completely different: the creation of a stationary workplace outside the location of the organization (clause 2). And for tax purposes, it does not matter at all whether the company has carried out legal procedures in this regard. It would seem that everything is simple: if there is a job in another city - give a notification. No - don't serve. But this simplicity is fraught with many problems.

Workplace attributes for a separate department

The first question that arises immediately after reading the above definition from 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 clause 1, the terminology is applied labor law... According to the workplace, a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

With that said, there are three main features of a workplace outside the location of the organization:

Availability labor relations between the organization and the employee.
The presence of the employee himself outside the location of the organization.
Organization's control over the workplace.

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

Situation one

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

Situation two

The location 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 subdivision for a company that has bought real estate in another region and rents it out (Resolution of the Federal Antimonopoly Service of the West Siberian District of 07.07.14 No. A81-4077 / 2013).

Situation three

The homeworker does not form a separate unit, 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 subdivision when sending an employee on a business trip. After all, the organization does not have the ability to control the workplace of a posted employee. Moreover, the traveler is subject to the rules of the internal work scheduleacting at the place of business trip (decision The Supreme Court RF of 20.06.02 No. GKPI 2002-663, ruling of the Supreme Court of the Russian Federation dated 27.08.02 No. KAS 02-441).

A separate subdivision is considered to be created even if employees visit its territory only during business trips.

The organization is obliged to register with the tax authorities at the location of a separate subdivision, regardless of how long employees have been present at the workplaces equipped in this subdivision. For example, the division where employees work can be considered isolated. on a rotational basis or are on a business trip. This is the conclusion reached by specialists of the Ministry of Finance of Russia in a letter dated 13.11.15 No. 03-02-07 / 1/65879.

"Stationary" or not?

The next point that needs to be taken into account when deciding on the presence of a separate unit is the stationarity of the workplace. The situation is more complicated here.

On the one hand, the Tax Code of the Russian Federation seems to give a definition of "stationarity": this is a job created for a period of more than a month. But, on the other hand, in a number of cases the courts also apply additional signs of stationarity. Thus, the Federal Antimonopoly Service of the Central District in its resolution dated 03.06.14 No. A64-5102 / 2013 indicated: the organization did not have a separate subdivision, since the technical equipment of the workplace was mobile and office rooms were not rented. (Note in parentheses that the case was about construction works and in support the court referred to the Code of Rules “Labor safety in construction. Regulations on the Procedure for Attestation of Workplaces for Working Conditions in Construction and Housing and Communal Services ", adopted by the Resolution of the State Construction Committee of Russia No. 26 dated March 31, 2000, according to which such workplaces are not recognized as stationary. Therefore, in ordinary situations, it is better to focus on the time frame for creating a job and not bring the matter to a dispute about other signs of "stationarity").

Where does the territory for a separate unit end

Another criterion for determining whether an organization has a separate subdivision is territorial. As stated in, the unit should be geographically separate from the organization. At the same time, the territory is usually understood as the municipality in which the organization is located. Accordingly, if the workplace appears in another municipality, then if other conditions are met, we can talk about the presence of a separate unit.

A little about responsibility

And what will happen if you do not report the creation of a separate division? According to the Ministry of Finance, responsibility for failure to inform the inspectorate within the prescribed period of information about the creation of a separate subdivision is established by paragraph 1, according to which the fine is 200 rubles. for each document not submitted.

Note: letter from the Ministry of Finance of Russia dated 04.17.13 No. 03-02-07 / 1/12946.

However, practice shows that in a number of cases inspectors try to establish more severe liability by applying the provisions of clause 2, which provides for a fine of 10% of income received in the course of carrying out 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 conduct control activities. Responsibility for the conduct of activities without registration only on one of the grounds given in this norm is not established

Note: Resolution of the Federal Antimonopoly Service of the North-West District of 29.04.04 No. A66-6713-03).

In this case, it will not be possible to collect from the taxpayer the fine provided for in paragraph 1 for violating the deadline for filing an application for registration. This is due to the fact that in this case the inspectors are obliged to register the organization at the location of its separate subdivision on the basis of the corresponding message that the organization submits in accordance with clause 2. And in this case, there is no statement as such at all.

There is no need to notify funds about the creation of a separate subdivision

From January 1, 2015, the obligation to report on the creation of a separate subdivision to the bodies of the Pension Fund and the Social Insurance Fund at the location of the organization was canceled (Federal Law No. 188-FZ of June 28, 2014).

How to create a separate subdivision: we draw up a solution, prepare cash transactions, notify the IFTS and funds

What taxes and reporting of separate divisions

The principle of payment and reporting on the main taxes and insurance premiums of organizations with separate subdivisions is shown. As a rule, the obligation to pay tax and submit reports depends on the location of the units and the independent balance sheet. And only VAT in all cases is paid by the parent organization.

Does a separate subdivision pay VAT

According to the law, organizations and individual entrepreneurs () are recognized as VAT taxpayers. An organization is a legal entity, but the unit it creates is not. Therefore, a separate subdivision is not a VAT payer, since it is not recognized as a legal entity.

Subdivisions are located separately from the organization, in order to comply with the requirements of the law, they need to issue invoices when selling goods (works, services) with VAT. Invoices can be signed by persons appointed by the order of the head of the parent organization. Subdivision invoices must be issued on behalf of the parent organization (line 2 of the invoice). In line 2b, you need to indicate the TIN of the organization, and the KPP - the corresponding separate subdivision. In line 3 "Consignor and his address" the name and postal address of the separate subdivision shall be entered.

There is a small nuance associated with the numbering of invoices. Decree of the Government of the Russian Federation of December 26, 2011 No. 1137 (clause 1 of Section II of Appendix No. 1) established that separate subdivisions number invoices using the digital index assigned to the subdivision. The index is placed through the separating character "/" (dividing line). The chronological order of numbering must also be followed.

Income tax and separate division

Organizations with separate subdivisions calculate and pay tax and advance payments in federal budget at the place of its location without distributing the indicated amounts to separate subdivisions ().

Tax that is listed in budgets of RF subjects... Advance payments of income tax are paid both at the location of the organization and at the location of each of its separate subdivisions based on the share of profit that falls on these separate subdivisions. The procedure for distribution of profits (determination of the share) is specified in clause 2 of Art. 288 of the Tax Code of the Russian Federation.

Income tax returns must be submitted for each separate division. If the divisions are 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 registered. This must be done before the start of the new tax period.

Personal income tax and separate divisions

Organizations - tax agents are obliged 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 that is 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 dated March 29, 2010 No. 03-04-06 / 54).

Personal income tax reporting for employees of a separate unit must be submitted at its location (letters of the Ministry of Finance of the Russian Federation dated 07.08.2012 No. 03-04-06 / 3-222, dated 16.12.2011 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 independently pay insurance premiums and submit calculations of insurance premiums to the Social Insurance Fund and the Pension Fund of the Russian Federation, if the following conditions are simultaneously met:

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

If at least one condition is not met, the obligation to pay contributions and submit reports is transferred to the parent organization (letters of the FSS RF dated 05.05.2010 No. 02-03-09 / 08-894p, Ministry of Health and Social Development of Russia dated 09.03.2010 No. 492-19).

It is also necessary to register a separate subdivision in the funds only if the four listed conditions are fulfilled (clause 12 of the Resolution of the PF RF Board of 13.10.2008 No. 296P, clause 1 of the Decree of the FSS RF dated 23.03.2004 No. 27).

Property tax of separate divisions

The procedure for paying property tax by separate divisions is enshrined in Art. Separate subdivisions 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 tax on movable property is paid by the parent organization (letter of the Ministry of Finance of the Russian Federation dated January 20, 2012 No. 03-01-11 / 1-19).

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

The property tax declaration and calculations for advance payments are submitted to the IFTS at the place of tax payment (

Separate subdivision

A separate division is always additional trouble for an accountant. Problems begin already at the stage of its creation. What is a stand-alone unit? When is it considered created? In which case do you need to register with the tax authorities at the place of its location, and in which not?

What is a separate division

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

From this definition, it can be concluded that an integral part of an organization is recognized as a separate subdivision in the presence of the following features:

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

There is no concept of a workplace in tax legislation. Therefore, the definition given in other branches of legislation should be used. This is stated in clause 1 of article 11 of the Tax Code of the Russian Federation.

The concept of a workplace is contained in the Federal Law of 17.07.1999 N 181-FZ "On the basics of labor protection in the Russian Federation".

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

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

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

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

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

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

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

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

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

Consider the case when an organization rents out of place of its location jobs created by another organization for its employees. In this situation, there is a reason for classifying these jobs as part of the tenant organization. Thus, the entity will have to recognize the emergence of a separate business unit.

But what if individuals work outside the location of the organization, with whom the organization has drawn up not labor, but civil contracts (for example, a contract for the provision of services)? In this case, for the purposes of the Tax Code of the Russian Federation, one cannot speak of the creation of a separate subdivision. Labor relations with individuals are absent, which means they cannot be called workers.

However, be careful: civil contracts often hide ordinary labor relations. Therefore, such contracts are the object of close scrutiny during inspections carried out by the labor inspectorate. If it is proved that the civil contract was concluded only for the purpose of "disguising" labor relations, the fine cannot be avoided<*>... Tax authorities may also file claims related to tax registration, payment of taxes and reporting at the location of such a separate subdivision.

<*> For more details, read the article "Civil contract: be careful" // RNK, 2003, N 5. - Approx. ed.

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

Separate subdivision of a legal entity: reporting and taxation

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

Example 2... Atlant LLC is registered in Omsk. The company acquired in the Tomsk region industrial premises, unusable and requiring overhaul. A security guard was hired to guard the facility for the duration of the renovation.

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

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

If you carefully read the definition of the concept of "separate subdivision" given in clause 2 of article 11 of the Tax Code of the Russian Federation, you will notice one interesting detail. It is defined through the concept of "territorially separate from the organization of the unit." The latter should be interpreted in the same meaning as it is used in other branches of law (clause 1 of article 11 of the Code).

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

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

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

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

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

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

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

Example 3... Let's use the conditions of example 1. Suppose that LLC "Kondor" has opened a representative office at the location of the acquired office. Employees of the society work in it.

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

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

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

When is a unit considered established? When stationary workplaces are equipped in it. Such a date can be, for example, the day when the employee started his job at the location of the unit. The legality of this position was, in particular, confirmed by the Decree of the Federal arbitration court West Siberian District of 11.11.2002 in case N F04 / 4146-855 / A03-2002.

As you know, in addition to registration at the location of separate divisions, an organization must register with tax authorities at the location of its real estate and vehiclesubject to taxation. Therefore, if the organization is already registered with the tax office at the location of the separate subdivision, it is not necessary to re-register. This is stated in the Letter of the Ministry of Taxes and Duties of Russia dated 08.08.2001 N ШС-6-14 / [email protected]

In addition to registration at the location of a separate subdivision, the organization is also obliged to inform about its creation at the place of its registration. A month is allotted for this from the date of the creation of the unit (clause 2 of article 23 of the Tax Code of the Russian Federation). Likewise, the liquidation of units should be reported. An organization can be registered with several tax offices. In this case, she must inform all tax inspectorates where she is registered about the creation of a separate subdivision.

Example 4... ZAO Topol is registered in Moscow and is registered only with the Moscow tax office. In 2002, it acquired a store in St. Petersburg and leased it out. Since the real estate was acquired, the company registered with the tax authorities in St. Petersburg. On January 1, 2003, the CJSC terminated the lease agreement and decided to carry out trading activities independently. For this, workers were recruited to the store.

In this case, a separate subdivision is considered to be created from January 1, 2003. However, the organization is not obliged to re-register with tax records in St. Petersburg. It only has to inform the tax inspectorates in Moscow and St. Petersburg about the creation of a separate division.

Sanctions for violations

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

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

Sanctions threaten not only the organization, but also its officialswho committed the listed violations. For a delay in filing an application, a fine is charged from 5 to 10 minimum wages (that is, 500 - 1000 rubles), and if at that time a separate division was conducting activities - from 20 to 30 minimum wages (2000 - 3000 rubles). This is stated in Article 15.3 of the RF Code of Administrative Offenses.

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

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

<**> For more details, read the reference material "Separate subdivisions: how to pay taxes and submit reports" // RNK, 2003, N 9. - Approx. ed.

S.A. Kumekov

magazine "Russian Tax Courier"

What is a separate organizational unit

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

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

Reasons for creating a separate division

Business expansion
Optimization of management of structural divisions in other regions
The desire of the organization to bring production closer to sources of raw materials requirements of environmental legislation on the location of hazardous and harmful industries far from settlements

Signs of a separate subdivision

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

The equipment of a stationary workplace means the creation of all the conditions necessary for the performance of labor duties, as well as the fulfillment of such duties by the employee (letter of the Ministry of Finance dated July 28, 2011 N 03-02-07 / 1-265, resolution of the Federal Antimonopoly Service of the North Caucasian District of June 20, 2007 N F08-3590 / 2007-1449A, FAS of the North-West District of 02.11.2007 in case A26-11293 / 2005).

Separate subdivisions are divided into

Branches
Representative offices
OP on tax legislation

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

Functions of the Representative Office and the Branch Office

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

Does the creation of an EP mean the conclusion of an employment contract with an employee who works outside the office?

The same applies to workers who work directly at home.

According to Art.

312.1 of the Labor Code of the Russian Federation, remote work is the performance of a labor function specified in an employment contract, in particular, outside a stationary workplace. Thus, teleworking does not involve equipping a stationary workplace. Consequently, no matter how long a remote worker is involved, a separate subdivision is not formed.

An organization that concludes a contract for the performance of work by the forces of workers engaged by a third organization does not create a separate division. A separate subdivision arises at the organization that provided personnel.

The workplace must be created for more than one month

The above signs collectively mean that the organization carries out activities through its separate subdivision. For the purposes of tax control, a Russian organization at the place of such activity (location of a separate subdivision) must be registered with the tax authority (Art.

Date of creation of a separate subdivision

The creation of a stationary workplace can be confirmed

Premises lease agreement
An employment contract with an employee, in which the workplace is determined at the location of a separate subdivision
Primary documents confirming the conduct of activities at the location of a separate subdivision (invoices, acts of acceptance and transfer)

The earliest of the documents that record the presence of all the characteristics of a separate subdivision will determine the date of its creation.

If the conduct of activities requires a special permit from authorized bodies, in particular, a license, then the date of its issue can be recognized as the date of creation of a separate division, since it is from this date that activities can be carried out.

STS when registering a separate division

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

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

The organization, which includes the OP, must register with the tax authority at the location of each of its OP.

Types of services from "AAA-Investments LLC"

Registration of companies (LLC / IE; PJSC / JSC)
Registration of non-profit organizations
Registration of changes
Share purchase and sale
Changes to the Criminal Code
Changes in the types of activities of the company (OKVED)
Bringing the charter in line with Federal Law No. 312-FZ
Change of name, legal address
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Other services
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Change of address of a separate division ... Or the promised three years are waiting

For several years, the Ministry of Finance has promised to amend the tax legislation to amend the procedure for accounting in tax authorities of separate divisions of organizations in connection with a change in their location. A number of written explanations on this issue serve as confirmation. At present, the Tax Code has been amended, including on tax administration issues. But has the finance department fulfilled its promise?

A gap in tax legislation

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

In this regard (in the absence of any norms of tax legislation governing the actions of taxpayers when changing the address of a separate subdivision), the Ministry of Finance in its explanations regularly advises taxpayers to be patient and wait for the corresponding changes in the Tax Code, but so far this has not happened, insists on the implementation of the procedure closing and opening a separate subdivision. This is also stated in his recent Letter dated 06/18/2010 N 03-02-07 / 1-282<1>.

A separate division moves to a new office

In practice, a situation is quite common when, after the termination of contractual relations with one lessor, a separate subdivision has to move to another premises, which, naturally, implies a change of address. As a result, the taxpayer is obliged to register a separate subdivision at a new address. These are the rules established in Art. Art. 23, 83 of the Tax Code of the Russian Federation.

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

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

Pointing out in Letter N 03-02-07 / 1-282 that there are no rules in tax legislation governing the procedure for changing the address of a separate subdivision, officials of the Ministry of Finance recommend that taxpayers in this situation deregister it from the tax authority at its old location and register it with tax authority at the new address (see also the Letters of the Ministry of Finance of Russia dated 28.12.2009 N 03-02-07 / 1-575, dated 08.05.2009 N 03-02-07 / 1-236, dated 14.07.2008 N 03-02 -07 / 1-278).

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

The tax department adheres to a similar point of view in Letters dated 21.08.2009 N 3-6-03 / 345, dated 02.05.2007 N 09-2-04 / [email protected], moreover, in practice, tax authorities often insist on adherence to these rules even in the case when an organization is forced to change the location of a separate subdivision within the territory under the jurisdiction of one tax authority.

This approach to the change of address by a separate unit was also supported by the judges in the Resolution of the FAS VVO dated September 16, 2008 in case No. As the arbitrators pointed out, the provisions of the RF Tax Code do not provide for the procedure for changing the location of a separate subdivision of a legal entity by making such an entry, but only contain the procedure for deregistering an organization at the location of a separate subdivision and registering it regardless of the location of the tax authority.

In the case when the organization does not follow the recommendations of the controllers and does not close a separate subdivision at the old address, tax authorities often return without execution the organization's message about the registration of its separate subdivision at the new address, sent in order to fulfill the obligation provided for in paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation (form No. С-09-3 "Notification of the creation (closure) of a separate division of the organization in the territory of the Russian Federation", approved by Order of the Federal Tax Service of Russia dated April 21, 2009 No. MM-7-6 / [email protected], or any written notice).

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

Taking into account the systemic interpretation of the norms established in Art. Art. 11, 83, 84 of the Tax Code of the Russian Federation, judges in the Resolution of the Ninth Arbitration Court of Appeal dated 04/30/2010 N 09-AP-6722/2010-AK also indicate the inconsistency of the arguments of the tax authorities on the issue of changing the address of a separate division.

Address changes - problems remain

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

On the other hand, the tax authorities file claims against organizations operating at an address different from that specified in the charter. Moreover, not finding a taxpayer at his legal address, tax authorities often go to court demanding him liquidation, motivating this by the fact that specifying a fictitious address during registration is gross violation of the law (paragraph 2 of article 25 Federal law dated 08.08.2001 N 129-FZ "On state registration of legal entities and individual entrepreneursHowever, this position of the tax authorities, as a rule, does not find support from judges, since the mentioned rule deals with irregularities that are irreparable. The discrepancy between addresses can hardly be considered as such, as evidenced by the existing arbitration practice (see, for example , Resolutions of the FAS SZO of February 27, 2010 in case N A56-25535 / 2009, FAS DVO of 13.11.2008 N F03-5002 / 2008, FAS PO dated 14.08.2008 in case N A06-187 / 2008-21, FAS ZSO of 04/01/2008 N F04-1548 / 2008 (1783-A03-24), Definition of the Supreme Arbitration Court of the Russian Federation of 05/30/2007 N 5933/07).

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

Note. Arbitration practice shows that address mismatch is not an irreparable violation.

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

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

However, over the past six months, there have been significant changes related to separate subdivisions, in particular, in the accounting procedure in tax authorities of organizations at the location of their separate subdivisions.

Changes that have already taken place

The first step was the entry into force on March 10, 2010 of the Procedure for registration, deregistration with the tax authorities of Russian organizations at the location of their separate divisions<2> (hereinafter - Order). The aforementioned Procedure provides for the possibility of registration with the tax authorities of an organization at the location of its branch (representative office) on the basis of an application for registration, which is submitted by the organization to the registering tax authority simultaneously with an application for amending the constituent documents of a legal entity in relation to the corresponding branch ( representation). Note that previously there was no single document governing the procedure for registering (and deregistering) separate divisions, there were only scattered regulations, which approved the forms of documents used when registering such units in certain cases, and explanations of officials on this matter.

<2> Approved by Order of the Ministry of Finance of Russia dated 05.11.2009 N 114n.

Then, in a Letter dated 16.03.2010 N MN-22-6 / [email protected] The FTS explained the algorithm and the peculiarities of the tax authorities' implementation of certain provisions of the said Procedure, taking into account the currently operating software. In addition, by Order of the Federal Tax Service of Russia dated March 24, 2010 N MM-7-6 / [email protected] the form of the organization's message about the choice of the tax authority for registration of several of its separate subdivisions located in the same municipality in the territories under the jurisdiction of different tax authorities was approved.

Further, there was a change in the position of the main tax department with regard to the discrepancy between the legal and actual addresses. So, finally agreeing with the opinion of the judges, the Federal Tax Service, in its Letter dated 05.05.2010 N MN-20-6 / 622, acknowledged that liquidating the organization just because it is not at its legal address is too harsh a measure. Therefore, the FTS recommended that the subordinate tax authority limit itself to imposing a fine on the head of the organization in the amount of 5,000 rubles. (P.

What are the differences between a branch and a separate division

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

And finally, the Letter of the Ministry of Finance of Russia dated 06/18/2010 N 03-02-07 / 1-282 was issued, in which, in contrast to previous clarifications on the issue of changing the address of a separate subdivision, it is indicated on the (then still) draft law providing for amendments to part the first Tax Code of the Russian Federation, including those aimed at improving the procedure for registering organizations with tax authorities.

The changes that were expected

Changes to Art.

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

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

<3> The text of the Law and the commentary to it see in the journal "Acts and Comments for an Accountant", N N 16, 17, 2010.

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

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

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

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

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

* * *

Thus, taking into account the amendments made to the Tax Code, it can be concluded that the procedure for submitting information to the tax authority about the change of the address of a separate subdivision is regulated. True, it will be in effect from the moment these changes come into force, that is, from 02.09.2010<4>... It can be argued that the need to close and open a separate subdivision in connection with the change of its location, on which the controllers had previously insisted, disappeared.

<4> In accordance with Art. 10 of Federal Law N 229-FZ, this document comes into force one month after the date of its official publication (with the exception of certain provisions that come into force at other times). The document was published in " Russian newspaper", No. 169, 02.08.2010.

O.P. Grishina

Journal Expert

"Topical issues of accounting

and taxation "