Stand-alone production. What is a separate subdivision. Separate subdivision of a legal entity: reporting and taxation

This aspect is sometimes forgotten. entrepreneurial activity, as the creation of separate divisions. It would seem that you registered a company and work calmly. However, the legislator establishes a lot of different duties that will need to be performed.

Immediately, we note that for an LLC, in which only the founder himself works, there is no need to open any separate divisions (hereinafter - also "OP", "isolation") - such a duty will only be for those who hire assistants under employment contracts.

What is a detachment?

You can also register an LLC at the address of the place of residence of the founder himself. This could be his house or apartment. If not create industrial production v apartment buildings, then an apartment may well become an acceptable option for registration.

If the activities of the Company will be carried out exclusively at the registration address, then there will be no need to create a stand-off. However, not every type of activity can be carried out from only one address.

For example, if you are engaged in trading, then without opening points retail will be problematic.

In this case, the activities of the LLC will be carried out not only at the registered address, but also in places other than it. This sign is the first on which you need to think about creating an OP, but there is no need to rush to open it. The fact is that legal norms link the registration of detachments with the availability of jobs at their addresses, but if jobs are not created there, then the obligation does not arise.

The difference between the isolation from branches and representative offices

Many people may have a confusion in their heads, but what exactly is meant by OP? According to Article 55 of the Civil Code of the Russian Federation, these include representative offices and branches. But they have a completely different order of creation, with the introduction of information into the Unified State Register of Legal Entities.

There are other types of detachments, which are mentioned in article 11 of the Tax Code of the Russian Federation, and it is they that need to be opened if the company's activities are carried out not only at its main address.

According to this norm, the EP is any structurally separate unit from the organization, where permanent jobs have been created for periods of more than one month.

Based on the wording of the norm, the EP should be opened only with the cumulative observance of the following rules:

1. At the place of the OP, workplaces are equipped. Based on the provisions of the norms of Article 209 of the Labor Code of the Russian Federation, workplace is a place controlled by the employer where, due to the performance of his duties, the employee must arrive, who works for this employer under an employment contract.
2. The workplace is stationary. This means that the work is performed not by remote workers who work remotely, but by people who are located directly in the field, where all the necessary conditions for their work are created.
3. The workplace has been created for more than a month. Any other jobs that exist for a shorter amount of time do not entail the obligation to open an EP.

Important! If with individuals it was not an employment contract that was concluded, but a GPC, then there are no obligations to open detachments, since the failure to provide services under GPC contracts does not entail the creation of jobs.

Thus, if an LLC has a warehouse on the outskirts of the city where consignments of goods are stored, then, in fact, the company's activities are also carried out at the address of the warehouse. However, this warehouse has neither a security guard nor a sorter - only goods that are under alarm. In this case, you do not need to register the peg as the work center is not equipped.

If a watchman sits at the warehouse every day, and his workplace will last for more than 1 month, then there is a need to open an OP. Likewise, if the LLC opens any outlets in the city - if there is a seller who works on a permanent basis, then a separate division opens.

What is the point of opening an OP?

The opening of detachments is important for collecting tax deductions. According to Article 230 of the Tax Code of the Russian Federation, personal income tax for employees must be paid at the location of the OP in which they work.

When expanding the business, the LLC can open several OPs in different cities of its presence. Accordingly, it is at the location of each detachment for each employee who works in them, and personal income tax must be paid.

If the LLC is registered in Belgorod, and the activity is carried out in Stary Oskol, then there are no questions - different regions, different tax authorities.

But what if the detachment is created literally on the next street and has the same tax office with the parent organization? In this case, you do not need to open the OP?

The wording of the law does not make such exceptions. The law says that it is necessary to open detachments in all cases when the place of business is not carried out at the place of registration of the LLC. Therefore, in order to avoid problems with the Federal Tax Service, it is better to register all OP, even if they are located in the same region and will be registered in the same tax office with a head office.

How to open a separate subdivision

Article 84 of the Tax Code of the Russian Federation establishes that the registration of segregations is carried out by sending special messages to the tax authorities. If the OP meets all the conditions for the workplace, then within a month from the moment of its creation, in accordance with Article 23 of the Tax Code of the Russian Federation, the Federal Tax Service, where the LLC is registered, must send a message of the form No. С-09-3-1.

Important! It is necessary to send this document to the inspection at the place of registration of the LLC, and not at the place of opening the OP - this is a fairly common mistake. If you send a message directly to the tax authority in which the stand-off will be registered, the message will be returned to the applicant.

The message of the form No. С-09-3-1 must be signed by the head of the LLC, or by a person authorized by a power of attorney. The power of attorney will need to be attached to the message; you do not need to attach other documents.

The message can be submitted to in electronic format by signing his EDS head.

In modern market conditions, companies in order to increase their income come up with various schemes to increase profitability, introduce new methods of production. Organizations strive to expand the boundaries of business, to promote goods (services) to sales markets not only in the nearest, but also in remote regions of the country. One of the most effective ways to achieve positive results is to create a branch (representative offices).

note In accordance with tax legislation, in order to exercise tax control, taxpayers are required to register with tax authorities at the location of the organization, the location of its separate subdivisions.

An organization that includes separate subdivisions located on the territory Russian Federation, is obliged to register with the tax authority at the location of each of its divisions, if this organization is not registered with the tax authority at the location of this division (clause 1 of article 83 of the Tax Code of the Russian Federation).

Civil law distinguishes the following types of separate divisions: branches and representative offices (Art. 55 of the Civil Code of the Russian Federation).

Representative office is a separate subdivision legal entity located outside the place of its location, which represents the interests of a legal entity and protects them.

A branch is a separate subdivision of a legal entity located outside its location and performing all its functions or part of them, including the functions of a representative office.

note Representative offices and branches are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it.

Heads of representative offices and branches are appointed by a legal entity and act on the basis of a power of attorney.

The Tax Code of the Russian Federation offers its own approach to the concept of a "separate subdivision". A separate subdivision means any subdivision geographically separate from the parent organization, at the location of which stationary workplaces are equipped. Recognition of a separate division of an organization as such is made regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and from the powers vested in this division. In this case, a workplace is considered stationary if it is created for a period of more than one month (Article 11 of the Tax Code of the Russian Federation).

Article 209 Labor Code RF workplace is defined as a place where an employee must be located or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

The location of a separate subdivision of a Russian organization in accordance with Art. 11 of the Tax Code of the Russian Federation is the place where this organization carries out activities through its branch or representative office.

The Resolutions of the Federal Antimonopoly Service of the North-Western District of 07.10.2002 N A26-3503 / 02-02-07 / 160 and the FAS of the Moscow District of 30.07.2004 N KA-A41 / 6389-04 indicate that the equipment of a stationary workplace means the creation of conditions for execution job responsibilities, as well as the very performance of such duties.

Even one created stationary workplace creates a separate subdivision, which is supposed to be registered with the tax inspectorate (Letter of the Ministry of Taxes and Duties of Russia dated April 29, 2004 No. 09-3-02 / 1912 "On the recognition of one workplace as a separate subdivision").

If employees work at home and the taxpayer has not equipped stationary jobs for them, a separate subdivision is not considered created. However, work from home must be formalized in employment contracts with employees.

Thus, a separate subdivision of an organization is any subdivision geographically separate from it, at the location of which the organization creates jobs and carries out its activities for a period of more than one month. The absence of any of the above signs of a separate subdivision does not lead to the creation of a branch or representative office by the organization (Letters of the Ministry of Finance of the Russian Federation dated 05.08.2005 N 03-02-07 / 1-211, dated 08.08.2006 N 03-02-07 / 1-212) ...

The procedure for creating a branch (representative office) for companies with limited liability determined by the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies". The company can create branches and open representative offices by decision general meeting members of the company, adopted by a majority of at least two-thirds of votes of the total number of votes of members of the company, if the need for a larger number of votes for making such a decision is not provided for by the charter of the company.

Concerning joint stock companies, then for them the procedure for the formation of a branch (representative office) is determined by the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies".

The creation of branches and the opening of representative offices of the company are within the competence of the board of directors (supervisory board) of the company. Amendments to the charter of the company related to the creation of branches, the opening of representative offices of the company and their liquidation are carried out on the basis of the decision of the board of directors (supervisory board) of the company.

On the basis of the decision (protocol) on the establishment of a branch, the opening of a representative office, the executive body of the company (director) issues an order on the creation of a separate subdivision, which indicates the name, location of the branch (representative office), the head is appointed, and the deadlines for registration with the tax authorities are established.

The same order can approve the Regulations on the branch (representative office) - an internal document containing information about the legal capacity of separate divisions, the types of activities they carry out, the purposes of their creation, rights and obligations, the management structure, the procedure for concluding transactions, the powers of management, the ability to dispose of in cash, as well as the procedure for the liquidation of a branch (representative office), etc.

On the basis of the order, changes are made to the constituent documents of the organization.

Representative offices and branches must be indicated in constituent documents the legal entity that created them. But the realities of life are such that the decision to create separate divisions is made, as a rule, after the registration of the constituent documents again the organization being created... Therefore, when creating a branch or representative office, it is necessary to amend the constituent documents of the organization.

The procedure for state registration of amendments to constituent documents related to the creation of separate subdivisions is established by the Federal Law of 08.08.2001 No. 129-FZ "On state registration of legal entities and individual entrepreneurs".

To amend the constituent documents of a company, the following package of documents must be submitted to the registering authority at the place of its location:

• decision to amend the constituent documents;
• changes to the constituent documents. The text of changes can be submitted by a legal entity both in the form of a separate written document attached to the charter (constituent agreement), and in the form new edition articles of association (articles of association);
• payment order for payment of state duty. For the state registration of changes made to the constituent documents of a legal entity, a state duty of 400 rubles is provided. (Clause 3, Part 1, Article 333.33 of the Tax Code of the Russian Federation).

As for the content of the information that must be reflected in the Charter, then on the basis of paragraph "n" of Art. 5 of the above law in a single state register legal entities must contain information about the full name of the branch (representative office) and its location.

Any change in the name or location of a branch (representative office) or the liquidation of the latter should also entail the introduction of appropriate changes in the constituent documents of a legal entity in order to ensure the accuracy of the information contained therein.

note The registering authority, within a period of not more than five days from the date of receipt of the said notification, makes an appropriate entry in the state register.

In the absence of properly registered constituent documents of a legal entity with information entered into them about the created branches and representative offices, we can talk about the inconsistency of constituent documents with current legislation.

Changes in constituent documents, including in the part of information about branches, become effective for third parties from the moment of their state registration.

The procedure for creating a separate subdivision is an order of magnitude easier than creating a branch (representative office) of a company. The opening of a separate subdivision is in the competence executive body(director) and is drawn up by an order of creation. The company's constituent documents do not contain information about a separate subdivision, therefore, when opening or closing a separate subdivision, nothing needs to be entered into the constituent documents.

You need to know that a separate subdivision should not be registered with the tax office if it is located in the territory of the same municipality as the organization itself.

After making changes to the constituent documents, the organization must register with the tax authority at the location of the branch (representative office). It is necessary to remember the deadline for registration, namely, the application must be submitted to the tax authority within one month after the creation of a separate subdivision.

Significant circumstances in the creation of a separate subdivision are the fact and the moment of creation of the subdivision, since the deadline for submitting an application for tax registration is calculated precisely from the moment the branch was created. At the same time, there is no reason to consider such a moment the day when an extraordinary meeting of the company's participants (supervisory board, director) made a decision to open a branch (representative office) (Resolution of the Federal Antimonopoly Service Central District dated 05.05.2004 in case No. А14-8354-03 / 23/18).

Preparation of a new place of business (acquisition of premises, its equipment, renovation work etc.). The period for notifying the tax authority begins to be calculated only from the moment of the actual creation of jobs, i.e. their final preparation for the implementation of activities (Resolution of the Federal Antimonopoly Service of the Moscow District of August 24, 2001 No. KA-A41 / 4467-01).

Registration of an organization at the location of its separate subdivision is carried out on the basis of an application in the form No. 1-2-Accounting, approved by Order of the Federal Tax Service of the Russian Federation No. SAE-3-09 / dated 01.12.2006 [email protected]"On the approval of the forms of documents used for registration and deregistration Russian organizations and individuals ".

When submitting an application for registration of an organization at the location of its separate subdivision, the organization, simultaneously with an application for registration, submits in one copy copies of certified established order certificates of registration with the tax authority of the parent organization at the place of its location, documents confirming the creation of a branch or representative office (clause 1 of article 84 of the Tax Code of the Russian Federation). Typically, the tax authorities require you to provide a notarized copy of such a certificate of registration with the tax authority.

As documents confirming the creation of a separate subdivision, the following can be submitted: constituent documents of a legal entity indicating in them information about the separate subdivision, or an extract from the Unified State Register of Legal Entities, or the Regulations on the branch (representative office), or an order (order) on the creation of a separate subdivision.

In the absence of documents confirming the creation of a branch or representative office, the registration of an organization with the tax authority at the location of its separate subdivision is carried out on the basis of an application for registration and a duly certified copy of the certificate of registration with the tax authority of the organization at its location ... When the organization of a separate subdivision is empowered to pay taxes at the place of its location, a document confirming these powers is submitted (clause 2.1.4 of the Order of the Ministry of Taxes and Duties of Russia dated 03.03.2004 N BG-3-09 / 178 "On approval of the Procedure and conditions for assignment, application, as well as changes in the taxpayer identification number and forms of documents used for registration, deregistration of legal entities and individuals ").

The registering authority is not entitled to require the submission of other documents other than the documents established by the Tax Code of the Russian Federation. Consequently, the list of documents established by the Tax Code of the Russian Federation is exhaustive.

In practice, the tax authorities form their list of documents, as a rule, they additionally require the following documents to be submitted for tax registration:

1. copies of constituent documents;
2. regulations on the branch (representative office);
3. a copy of the certificate of state registration of the parent organization;
4. an order for the appointment of a director and chief accountant of a division;
5. information about the director and chief accountant of both the parent organization and the branch;
6. lease agreement for non-residential premises for a separate subdivision;
7. a letter confirming the authority of a separate subdivision to pay taxes;
8. extract from the Unified State Register of Legal Entities in respect of the parent organization.

A branch or representative office is not assigned a taxpayer identification number (TIN) separate from the parent organization, since a separate subdivision is not an independent taxpayer. In the document flow, a separate division uses the TIN of the parent organization directly.

However, a separate subdivision will be assigned its own registration reason code (KPP), different from the parent organization. It will be indicated in the Notification of tax registration at the location of the separate subdivision.

The tax authority is obliged within five days from the date of submission of all required documents register a separate subdivision and issue a corresponding notification.

If the organization makes a decision to terminate the activities (closure) of a subdivision, the organization is obliged to notify the tax authority at the location of the separate subdivision in writing within one month from the date of closure.

Application in the form No. 1-4-Accounting for withdrawal from tax accounting approved by Order of the Federal Tax Service of the Russian Federation dated 01.12.2006 N SAE-3-09 / [email protected] Tax inspectors may require additional documents from the organization, for example, a copy of the order to close a separate subdivision, the original notification of the registration of a separate subdivision in tax accounting.

According to paragraph 5 of Art. 84 of the Tax Code of the Russian Federation, in the event that an organization decides to terminate the activities (closure) of its separate subdivision, the deregistration of the organization at the location of this separate subdivision is carried out by the tax authority at the request of the taxpayer within 10 days from the date of filing such an application, but not earlier than the end of the exit tax office. verification if carried out.

In accordance with paragraph 2 of Art. 23 of the Tax Code of the Russian Federation, organizations are required to report in writing about all separate divisions created on the territory of the Russian Federation within one month from the date of the establishment of a representative office or the termination of the organization's activities through a separate division. The specified message is submitted to the tax authority at the location of the parent organization.

The form of such a message was approved by Order of the Federal Tax Service of the Russian Federation dated January 17, 2008 No. MM-3-09 / [email protected]"On the approval of the forms of messages by taxpayers of information provided for by paragraphs 2, 3 of Article 23 of the Tax Code of the Russian Federation."

Copies of documents confirming the establishment (closure) of a representative office are attached to the message according to the form No. С-09-3 "Message on the creation (closure) of a separate subdivision in the territory of the Russian Federation".

The question often arises, what should an organization do if a separate unit, while continuing to work, changes its location?

The Tax Code of the Russian Federation does not contain provisions providing for a change in the location of a separate subdivision, and such a term as "change of location" in the current legislation refers only to a legal entity.

In case of carrying out activities at a new address (for example, when concluding a lease agreement for new premises), the organization must carry out the procedure for closing and opening a representative office, that is, to carry out all the above actions.

In accordance with paragraphs. 1 h. 3 tbsp. 346.12 of the Tax Code of the Russian Federation is not entitled to apply the simplified taxation system to organizations that have branches or representative offices.

However, if an organization has created a separate subdivision, which is not a branch or representative office, and is also not indicated as such in the constituent documents of the organization, then such an organization has the right to apply a simplified taxation system.

In this case, the payment of the tax paid in connection with the application of the simplified taxation system is made by the parent organization at the place of its location.

When creating a separate division, it is necessary to remember that the parent company bears responsibility for their activities.

The courts directly indicate that branches, representative offices of organizations are not considered as participants in tax legal relations and do not have the status of taxpayers, tax agents and other obligated persons.

In this regard, responsibility for the fulfillment of all obligations to pay taxes, fees and penalties is borne by a legal entity, which includes the corresponding branch (representative office) (clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 41, Plenum of the Supreme Court of the Russian Federation No. 9 of June 11, 1999 d. "On some issues related to the introduction of part one of the Tax Code of the Russian Federation").

To find out that the organization has created a separate subdivision and has not registered it, the tax authority can, for example:

• during an on-site check of the organization itself, if it follows from the documents that the organization bears the costs of maintaining an object (own or rented) located in a different territory than the head division of the organization. For example, pays for electricity, water, transfers rent;
• on-site inspection of the lessor who has leased the property to a separate subdivision. But the tax authority that checks the lessor can identify an unregistered subdivision only if it verifies the actual location of tenants with the information on the Unified State Register of Legal Entities.

What is the responsibility for the fact that the organization did not register at the location of the representative office in a timely manner and in accordance with the established procedure?

If the organization does not inform the tax office about the opening of a branch, as required by paragraph 2 of Art. 23 of the Tax Code, then she will be fined 50 rubles. for each non-submitted document (clause 1 of article 126 of the Tax Code of the Russian Federation). This article provides for liability for failure to provide the tax inspectorate with the information necessary to exercise control.

Unlawful failure to report (untimely communication) by a person of information that this person must report to the tax authority entails the recovery of a fine in the amount of 1,000 rubles (Article 129.1 of the Tax Code of the Russian Federation). The same acts, committed repeatedly within a calendar year, are punishable by a fine in the amount of 5,000 rubles.

At the same time, in accordance with Part 1 of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) for failure to submit within the time period established by the legislation on taxes and fees, the official responsible for submitting the specified message may also be fined. The amount of the fine is from 300 to 500 rubles.

If the company is late in filing an application for registering a branch with an inspection, then it will be charged a fine of 5,000 or 10,000 rubles. (if the delay is more than 90 calendar days) (Article 116 of the Tax Code).

In this case, not only the organization itself can suffer, but also its leaders - the director and chief accountant. For late filing of an application for registration with the tax inspectorate, officials can be punished with a fine of 500 to 1000 rubles.

Carrying out activities without tax registration is punishable by a fine of 10% of the income received by the organization during such activity, but not less than 20,000 rubles. (part 1 of article 117 of the Tax Code of the Russian Federation). When operating without registration for more than 90 calendar days, the amount of the fine increases to 20% of income for the period of work without registration, but not less than 40,000 rubles (part 2 of article 117 of the Tax Code of the Russian Federation).

Failure to submit, or untimely submission, or submission of false information about a legal entity to the body that carries out state registration of legal entities, in cases where such a submission is provided for by law, entails a warning or the imposition of an administrative fine on officials in the amount of 5,000 rubles (part 3 of Art. 14.25 of the Administrative Code of the Russian Federation).

In addition, part 2 of Art. 25 of the Federal Law of 08.08.2001 N 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs" provides that the registering authority has the right to apply to the court with a demand to liquidate a legal entity in case of gross violations of the law or other legal acts, if these violations are irreparable, as well as in the case of repeated or gross violations of laws or other normative legal acts of state registration of legal entities.

The division of responsibility for failure to submit documents (information) required for tax control between the Tax Code of the Russian Federation (Articles 126 and 129.1) and the Administrative Code of the Russian Federation (Article 15.6) is carried out only in terms of the range of persons held accountable. Organizations are held liable for failure to submit documents (information) under the Tax Code of the Russian Federation (Articles 126 and 129.1), and officials of organizations under the Code of Administrative Offenses of the Russian Federation (Article 15.6).

Responsibility for administrative offenses in the field of taxes is established by Articles 15.3 - 15.9 and 15.11 of the RF Code of Administrative Offenses. The subjects of responsibility according to these articles are the officials of the organizations.

Responsibility for violation of tax legislation is established by chapters 15, 16 and 18 of the Tax Code of the Russian Federation. The subjects of responsibility are the organizations themselves, and not their officials, bringing the latter to administrative responsibility does not preclude bringing organizations to responsibility established by the Tax Code of the Russian Federation (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of January 27, 2003 No. 2 "On some issues related to the introduction of the code Of the Russian Federation on Administrative Offenses ").

Consequently, the application of penalties at the same time, both to a legal entity and to official of this legal entity is legal.

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The norms of the current legislation of the Russian Federation allow companies to conduct their activities not only at their location, but also at a territorial distance from it.

In which cases it is necessary to register a branch, and in which - another separate subdivision, as well as how a branch differs from a separate subdivision, we will figure it out in this consultation. And at the same time we will answer the question: is a separate subdivision a branch or not.

Branches and separate divisions of the organization

A separate subdivision is any subdivision geographically remote from the location of the organization in which stationary jobs have been created (that is, for a period of more than one month), regardless of whether the creation of such a subdivision is reflected in the constituent documents of the organization, and from the powers with which it is endowed (Art. 11 of the Tax Code of the Russian Federation).

A separate subdivision can be a branch or a representative office. However, the difference between a separate subdivision from a branch and a representative office still exists (Article 55 of the Civil Code of the Russian Federation).

The difference between a branch and a separate subdivision is due to the fact that a branch is a separate subdivision of a legal entity located remotely from its location and performing the functions of the parent organization (or part of them), including the functions of a representative office. A representative office, in turn, is a separate subdivision of an organization located remotely from its location and representing the interests of a legal entity and protecting them. A simple separate subdivision (geographically remote and having stationary workplaces), unlike a branch, is not entitled to perform the functions of a parent organization (Article 55 of the Civil Code of the Russian Federation).

In addition, the difference between a branch and a separate subdivision also lies in the fact that information about the branch must be indicated in the unified state register of legal entities. Information about a simple separate subdivision with stationary jobs does not need to be entered into the Unified State Register of Legal Entities (Article 55 of the Civil Code of the Russian Federation).

In other words, a separate subdivision is a branch, a representative office, and an ordinary separate subdivision that does not have the status of a branch or a representative office.

Branch or separate division: differences (table)

When making a choice between a separate subdivision or a branch, first of all, you need to understand what functions will be assigned to this subdivision, whether independent maintenance is planned accounting whether the unit will have separate checking accounts. For convenience, we will present the main differences in the form of a table.

Branch, representative office, separate subdivision - differences:

Sometimes it happens that an organization is registered at a certain legal address, and begins to conduct activities at a different address. Does this mean that a separate subdivision of a legal entity has been created, located outside its location? After all, a separate subdivision is subject to registration in a separate registration account with the tax inspectorate at its location (clause 4 of article 83 of the Tax Code of the Russian Federation). We will give the signs of a separate subdivision of a legal entity and determine when it becomes necessary to register a subdivision with the IFTS.

Signs of a separate subdivision of a legal entity

A division of a legal entity is recognized as separate and is subject to registration with the tax inspectorate when performing following criteria(Clause 2, Article 11, Subclause 3, Clause 2, Article 23, Clause 4, Article 83 of the Tax Code of the Russian Federation):

• the unit is located at a different location from the location of the organization itself. Read more about this;
• the department has at least one stationary workstation. We talked about this;
• the workplace was created for a period of more than one month;
• the specified workplace is controlled by the organization, and not by any other legal entity;
• hired an employee who will work in the unit. Read more about this.

Note that it does not matter whether the creation of a separate subdivision is reflected in the constituent or organizational and administrative documents of the organization. If the above characteristics of a separate legal entity are fulfilled, then the subdivision is subject to registration (clause 1 of article 83 of the Tax Code of the Russian Federation).

Separate subdivisions in the form of a branch or representative office

If an organization opens a branch or representative office, then it indicates information about it in the constituent documents. After that, information about the branch or representative office will be indicated in the unified state register of legal entities (USRLE) (clause 3 of article 55 of the Civil Code of the Russian Federation). And then the tax inspectorate will automatically register the branch or representative office on the basis of information from the Unified State Register of Legal Entities (clause 3, article 83 of the Tax Code of the Russian Federation).

Other separate divisions: registration

If a separate subdivision of a legal entity is created, located outside its location, which is not a branch or representative office, then it is registered on the basis of a message submitted by the organization itself. We talked about this in detail

Why open a separate division for an LLC?

It happens that a newly formed LLC does not have its own or rented office. In this case, he is listed 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 the official instances, arrives on time - this is not scary. However, when the LLC begins to operate, there is a need for the actual location.

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In some cases, the nature of the organization's work allows you to conduct business remotely, right from home, but when it comes to shops, warehouses and office premises, the activities of the enterprise begin to imply work at the address. This situation implies the need to open a separate subdivision.

Or another situation. You need to expand your business beyond your hometown. Whatever activity you are talking about, you will need to legally correctly register 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 subdivision: implies the presence of at least one "stationary" workplace. The workplace means the conclusion employment contract with an employee for at least one month. The work should be controlled by the employer, and the employee himself is at his workplace, in accordance with his official duties... (Reason: Article 209 TC)

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

Hired workers with whom you collaborate remotely are also not considered “stationary”. Therefore, in order to conclude contracts with them, it is not at all necessary to deal with the registration of a separate division.

Important! If you are individual entrepreneur, you do not have to register separate subdivisions. By law, individual entrepreneurs have the right to conduct their activities anywhere in the country, without reference to the place of registration. If an 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 subdivision 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's what the Tax, Labor and Civil Codes say:

• According to Art. 11, NK, Separate subdivision of an organization is any subdivision geographically separate from this organization, in which stationary workplaces are equipped.
• 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 divisions 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.

Considering all of the above, the conclusion suggests itself that a clear definition of a stand-alone enterprise simply does not exist. It turns out that when registering, the main task will be to avoid what is typical for branches and representative offices.

The following characteristics of branches and representative offices are spelled out 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 the representative office.
• Representative offices and branches are not legal entities, their data must be registered in the Unified State Register of Legal Entities and in the organization's charter.

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

An organization can be classified as working according to DOS from the moment of creation (beginning of a quarter) of a separate subdivision with the characteristic features of a branch or representative office. And according to the DOS, the organization will be charged with the obligation to charge all tax collections of the general regime.

Features of opening branches and representative offices of LLC

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

1. The charter of the LLC spelled out the actual creation of a branch or representative office. (By itself, the ability to create a branch or representative office, which can also be spelled out in the charter, does not affect the tax system)
2. The head organization approved the regulation on branches and representative offices.
3. Branches and dealerships have an appointed manager acting by proxy.
4. Internal normative documentation has been developed that regulates 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, you need to check that the created separate division does not have the above signs of a branch or representative office. Also, in the Regulations on separate divisions, it should be indicated that it is not a branch and a representative office, and does not have similar signs, does not deal with economic activities on one's own. The separate division is managed by the head of the LLC, and a director is not appointed.

Registration of separate subdivisions of an LLC with the tax office

In Art. 83.1 of the Tax Code of the Russian Federation, the Organization must register at the location of the 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 location 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 in the territories under the jurisdiction of different tax inspectorates, it is possible to register all subdivisions on the territory of the tax inspection department of one of them. For example, several tax services function in one city, and an organization in this city plans to open four stores that are located on the territory of different National Assembly, in this case, all four stores can be registered as separate divisions in one tax service.

If the location of a separate subdivision changes, you should inform about this with the indication of the new address in the NI (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 a separate balance will be kept in it, a current account will be opened and the accrual of payments to employees is planned. Registration must be completed within 30 days.

The following documents must be submitted to the Pension Fund:

• Tax registration certificate;
• 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 maintaining a balance.
• registration statement (original)

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

• Tax Registration Certificate;
• GRYUL certificate;
• An order to open a separate subdivision, documents confirming the existence of a current account and opening a balance;
• Letter from the state statistics Rosstat;
• Tax registration notification;
• The only original is the registration statement;

It is noteworthy that the simplified tax and insurance premium for employees of a separate division 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 division.

Responsibility for violations when opening a separate subdivision

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

• The deadline for filing a notification of tax registration has been violated - 10,000 rubles. (Article 116 of the NKRF);
• A separate division 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 the terms of registration in the Pension Fund - 5000 rubles. and 10,000 rubles. (if the registration delay lasts more than 90 calendar days); (Article 27 No. 167-ФЗ dated 15.12.2001);
• Similar fines are provided for violation of the terms of registration with the Social Insurance Fund 5000 rubles. and 10,000 rubles. respectively (Article 19 No. 125-ФЗ dated 24.07.98).

Procedure for opening a separate subdivision

1. Make sure that you are registering a separate subdivision, and not a branch or representative office. (Another algorithm of registration)
2. Check whether the workplaces are stationary (created for 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 FSS, if the separate division has its own current account and maintains a balance.
5. All changes (address, name) should be reported within 3 days to the Tax Service, on the territory of registration of a separate subdivision (form No. С-09-3-1)

Let's summarize. More often than not, 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 easy enough 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 registration process can take as little as a week.