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Territorially separate division. Separate subdivision of a legal entity 2 separate subdivision of an organization

The presence of a territorially remote subdivision of an organization generates whole line questions. Is it a branch, representative office or separate subdivision? How and where to pay taxes? Is one remote unit considered a separate subdivision? workplace? These and other questions in this article are answered by A.A. Kulikov, Deputy Head of the Department of Documentary Checks of the Directorate for Tax Crimes of the Main Internal Affairs Directorate for St. Petersburg and the Leningrad Region.

Separate subdivision in the Tax Code of the Russian Federation

In accordance with paragraph 2 of Article 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization is

Based on the definition given in the Tax Code of the Russian Federation, taking into account the requirements of paragraph 4 of Article 83 of the Code, the essential features of a separate subdivision can be distinguished:

territorial isolation of property owned by the organization by right of ownership from the organization itself, regardless of the fact documentation creation of an appropriate unit;
the presence of jobs (moreover, the legislator indicates the plural number of the latter), created for a period of at least one month (in accordance with the provisions of Article 6.1 of the Tax Code of the Russian Federation, a month is understood as calendar month);
conducting activities by the organization through the relevant unit.

As a matter of priority, when deciding on the creation of a separate subdivision, it is necessary to establish the true meaning of isolation and its essential features.

Location of the organization and its division

In accordance with the provisions of the Tax Code of the Russian Federation, the concept of the location of the organization is not disclosed, as a result of which, taking into account the norms of Article 11 of the Tax Code of the Russian Federation, the conceptual apparatus of civil legislation can be fully involved. In accordance with paragraph 2 of Article 54 of the Civil Code of the Russian Federation, the location legal entity determined by its place state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of such, another body or person entitled to act on behalf of a legal entity without a power of attorney. Since the relevant norms of the Civil Code of the Russian Federation, as well as the Resolution of the Plenum of the Armed Forces of Russia and the Plenum of the Supreme Arbitration Court of Russia dated July 1, 1996 No. 6/8 "On Certain Issues Related to the Application of Part One of the Civil Code Russian Federation"use a reference norm to the provisions of the legislative act regulating the issues of state registration of legal entities, let's turn to the text of the latter. Based on the meaning of subparagraph "c" of paragraph 1 of Article 5 federal law dated 08.08.2001 No. 129-FZ "On state registration of legal entities and individual entrepreneurs"The location of the permanent executive body of a legal entity is its address. Additional information regarding the concept of "address" is contained in subparagraph "e" of paragraph 2 of the same article, in which the address is understood as a set of details that determine the location of an object in space:

name of the subject of the Russian Federation;
the name of the district, city, other settlement;
street name;
house and apartment number.

Thus, the creation of a separate division as legal fact it can be stated when the latter (that is, stationary jobs) is created at a different address than the address of the state registration (and, therefore, location) of the organization.

A separate division, branch or representative office?

The concept of a separate subdivision must be clearly distinguished from civil law concepts similar in content to "branch" and "representative office". The latter, in accordance with Article 55 of the Civil Code of the Russian Federation, include a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them (representation) or performs all or part of its functions, including the functions of a representative office (branch) . By virtue of the direct indication of the Civil Code of the Russian Federation, representative offices and branches must be indicated in founding documents the legal entity that created them. In the absence of such an indication, a representative office or branch cannot be considered established.

This problem, in particular, manifested itself in the application of the provisions of Chapter 26.2 of the Tax Code of the Russian Federation "Simplified Taxation System". In accordance with subparagraph 1 of paragraph 3 of Article 346.12 of the Tax Code of the Russian Federation, organizations that have branches and (or) representative offices are not entitled to apply the simplified system. It is precisely this wording that has become individual cases reason for obstruction in the application by taxpayers of the simplified tax system.

Creation of a separate division

The creation of a separate subdivision gives rise to a number of consequences for the taxpayer that are directly provided for by the legislation of the Russian Federation - registration with the tax authorities, as well as the calculation and payment of taxes and fees not only at the location of the organization, but also at the location of separate subdivisions (Article 19 of the Tax Code of the Russian Federation ).

The obligation to notify the tax authority of the creation of a separate subdivision is provided for by paragraph 2 of Article 23 of the Tax Code of the Russian Federation, while the obligation to register a taxpayer with the tax authorities at the location of a separate subdivision is provided for by paragraphs 1 and 4 of Article 83 of the Tax Code of the Russian Federation. For non-compliance with the above requirements, Article 116 of the Tax Code of the Russian Federation and 15.3 of the Code of Administrative Offenses of the Russian Federation provide for tax and administrative liability (up to 10,000 rubles and up to 30 minimum wages, respectively). At the same time, it should be taken into account that if the taxpayer is already registered with the tax authority, then there is no obligation to register with the same tax authority, but on a different basis (including in the case of creating a separate subdivision) (paragraph 39 of the decision of the Plenum of the Supreme Arbitration Court of Russia dated February 28, 2001 No. 5 "On some issues of the application of part one of the Tax Code of the Russian Federation").

The deadlines for filing an application for tax registration at the location of a separate subdivision are given in both Article 23 and Article 83 of the Tax Code of the Russian Federation:

in accordance with paragraph 2 of Article 23 of the Tax Code of the Russian Federation - within one month from the date of their creation, reorganization or liquidation;
in accordance with paragraph 4 of Article 83 of the Tax Code of the Russian Federation - within one month after the creation of a separate subdivision (it should be noted that this norm of the Tax Code of the Russian Federation connects the obligation to send an application for tax registration at the location of a separate subdivision with the fact that the organization carries out activities through the specified separate division).

In accordance with Article 9 of the Tax Code of the Russian Federation, when applying the provisions of the Tax Code of the Russian Federation, the tax authorities are understood to mean the Ministry of the Russian Federation for Taxes and Duties and its subdivisions in the Russian Federation. Since the legislator, when deciding on the issue of tax registration of a taxpayer when creating a separate subdivision, focuses on the place of formation of such, it can be concluded that the taxpayer must submit an appropriate application to the tax authority in compliance with the territorial jurisdiction, without taking into account the specifics of accounting for certain groups of taxpayers in specialized tax authorities (tax authorities of an industry or subject orientation - construction, motor transport, banking, etc.). This conclusion is also confirmed by the fact that the need to register with the tax authorities at the place of creation of separate subdivisions is due to the provisions of the Tax Code of the Russian Federation, which provide for the obligation to distribute tax liabilities of the taxpayer, including at the location of these separate subdivisions. Since part of the taxpayer's tax liabilities is subject to distribution to the budgets of other territories, it is logical to assume a mechanism in which the payment of taxes falling on these territories would be controlled by the territorial authorities at the location of a separate subdivision. At the same time, it is impossible not to recognize the validity of the arguments that a separate subdivision within the framework of tax legal relations should be understood as such a subdivision that leads to the taxpayer's obligation to pay taxes to various budgets of the constituent entities of the Russian Federation or municipalities. Otherwise, the isolation of such a subdivision leads only to territorial isolation, in no way affecting the amount of tax liabilities of the taxpayer. However, such argumentation, for all its logic, was not evaluated by the courts.

Stationary workplaces

A necessary sign of the creation of a separate subdivision is the presence of stationary jobs, that is, created for a period of at least one month. In accordance with Article 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Between the organization and the individual can be both labor and civil law contracts, which significantly affects the establishment of the fact of the availability of jobs. Since the concept of a workplace is an element of the system of labor relations (regulated by the Labor Code of the Russian Federation), it should be recognized that jobs, in principle, can only arise if an employment contract is concluded with an individual. The conclusion of any other contracts, including the performance of work or the provision of services, cannot lead to the creation of jobs and, consequently, to the formation of a separate division. This approach was fully supported by the Federal Arbitration Court of the Far Eastern District in its decision No. Ф03-А59/01-2/96 dated February 14, 2001. With regard to the issue of the number of stationary jobs, it is necessary to draw the attention of taxpayers to individual arbitration cases, the resolution of which did not take place in favor of the latter - the court stated the possibility of creating a separate subdivision even if there is one stationary workplace (Decree of the FAS MO dated 23.01.2003 No. KA-A41 / 9052-02, resolution of the FAS VSO dated 09.01.2001 No. A33-8564 / 00-C3-F02-2926 / 00-C1).

Thus, it can be stated that the taxpayer's obligations arising from the fact of the formation of a separate subdivision arise from the moment of equipping stationary workplaces controlled by the employer, provided that activities are carried out through the specified separate subdivision.

This position has been confirmed in many judicial acts.

"... as established by the court and confirmed by the materials of the case, from the moment of appointment, that is, from 07.06.2002, the store director performed only representative functions, organized the repair of premises rented to house the store, conducted preparatory work for the enterprise to receive goods for sale in the shop.

The renovation of the premises was completed on 02.09.2002.

Stationary workstations were equipped by 16.09.2002, the store staff began to perform their duties also from 16.09.2002.

Considering the foregoing, the appellate court considers that tax office the fact of creation of stationary jobs and the fact of the beginning of financial economic activity before 16.09.2002...".

Decree of the Federal Antimonopoly Service of the North-Western District
No. А21-2902/03-С1 dated August 18, 2003

Obligations to pay taxes

The emergence of a separate subdivision for a taxpayer, by virtue of the provisions of Article 19 of the Tax Code of the Russian Federation and special norms of part two of the Tax Code of the Russian Federation, gives rise to additional responsibilities related to the determination of the proper place of payment of the relevant taxes.

Personal income tax (clause 7, article 226 of the Tax Code of the Russian Federation).

Tax agents - Russian organizations specified in paragraph 1 of Article 226 of the Tax Code of the Russian Federation, which have separate subdivisions, are obliged to transfer the calculated and withheld tax amounts both at their location and at the location of each of their separate subdivisions.

The amount of tax payable to the budget at the location of a separate subdivision is determined on the basis of the amount of taxable income accrued and paid to employees of this separate subdivision.

Unified social tax (clause 8, article 243 of the Tax Code of the Russian Federation).

Separate subdivisions that have a separate balance sheet, current account and accrue payments and other remuneration in favor of individuals, fulfill the obligations of the organization to pay tax (advance tax payments), as well as the obligation to submit tax calculations and tax returns at their location.

The amount of tax (advance tax payment) payable at the location of a separate subdivision is determined on the basis of the value of the tax base relating to this separate subdivision.

The amount of tax payable at the location of the organization, which includes separate subdivisions, is determined as the difference between the total amount of tax payable by the organization as a whole and the total amount of tax payable at the location of separate subdivisions of the organization.

Insurance contributions for compulsory pension insurance (clause 8, article 24 of the Federal Law of December 15, 2001 No. 167-FZ).

Insurers - organizations that include separate divisions, pay insurance premiums at its location, as well as at the location of each of the separate divisions through which these insurers pay remuneration to individuals.

Tax on property of organizations (Article 384 of the Tax Code of the Russian Federation).

An organization that includes separate subdivisions with a separate balance sheet pays tax (advance tax payments) to the budget at the location of each of the separate subdivisions in respect of property recognized as an object of taxation in accordance with Article 374 of the Tax Code of the Russian Federation, which is on a separate balance sheet of each of the them, in the amount determined as the product of the tax rate in force in the territory of the corresponding subject of the Russian Federation, where these separate subdivisions are located, and the tax base (average value of property) determined for the tax (reporting) period in accordance with Article 376 of the Tax Code of the Russian Federation, for each separate division.

Corporate income tax (Article 288 of the Tax Code of the Russian Federation).

Taxpayers - Russian organizations that have separate divisions, calculation and payment in federal budget the amounts of advance payments, as well as the amounts of tax calculated on the basis of the results of the tax period, are made at their location without distributing the said amounts among separate subdivisions. Payment of advance payments, as well as tax amounts to be credited to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, is made by taxpayers - Russian organizations at the location of the organization, as well as at the location of each of its separate divisions based on the share of profit attributable to these separate divisions.

This profit share is defined as the arithmetic average of the share average headcount employees (labor costs) and the share of the residual value of the depreciable property of this separate subdivision, respectively, in the average number of employees (labor costs) and the residual value of depreciable property, determined in accordance with paragraph 1 of Article 257 of the Tax Code of the Russian Federation, in general for the taxpayer.

The share of the average number of employees and the share of the residual value of depreciable property are determined based on the actual indicators of the average number of employees (labor costs) and the residual value of fixed assets of these organizations and their separate divisions at the end of the reporting period.

The amounts of advance payments, as well as the amounts of tax to be credited to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, are calculated at the tax rates in force in the territories where the organization and its separate subdivisions are located. Calculation of the amounts of advance tax payments, as well as the amounts of tax payable to the budgets of the constituent entities of the Russian Federation and the budgets of municipalities at the location of separate subdivisions, is carried out by the taxpayer independently.

Information about the amounts of advance tax payments, as well as the amounts of tax calculated at the end of the tax period, the taxpayer shall notify his separate subdivisions, as well as tax authorities at the location of separate subdivisions no later than the deadline established by this Article for filing tax returns for the corresponding reporting or tax period.

" № 7/2018

Organizations with separate subdivisions pay income tax to the budget, taking into account the features set forth in Art. 288 of the Tax Code of the Russian Federation. So, by virtue of clause 1 of the said norm, the tax credited to the federal budget is payable at the location of the organization (without distribution by separate divisions). But the tax payable to the revenue side of the budgets of the constituent entities of the Russian Federation is paid at the location of the organization, as well as each of its separate divisions, based on the share of profit attributable to these divisions (clause 2).

On the application of the provisions of Art. 288 of the Tax Code of the Russian Federation, we have repeatedly written on the pages of our magazine. This article will focus on the situations in which we can talk about the presence of separate divisions (OP) in organizations.

The concept of a separate unit.

IN Civil Code the mention of a separate division is contained in Art. 55, where branches and representative offices are defined:

representative office - OP of a legal entity located outside its location, which represents the interests of a legal entity and protects them (clause 1);

branch - a SC of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office (clause 2).

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 its power of attorney (clause 3, article 55 of the Civil Code of the Russian Federation).

Representative offices and branches must be indicated in the Unified State Register of Legal Entities (paragraph 3, clause 3, article 55 of the Civil Code of the Russian Federation).

Note that the Tax Code of the Russian Federation presents a broader concept of a separate subdivision than the Civil Code of the Russian Federation. Judge for yourself.

According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, OP is understood as any subdivision that is territorially isolated from the organization, at the location of which stationary workplaces are equipped. The recognition of a separate subdivision as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the subdivision. At the same time, the workplace is considered stationary if it is created for a period of more than one month.

By virtue of paragraph 1 of Art. 83 of the Tax Code of the Russian Federation, organizations that include separate subdivisions located on the territory of the Russian Federation are subject to registration with the tax authorities at the location of each of their OP. At the same time, by virtue of clause 4 of this article, if several EPs of an organization are located in one municipality, cities of federal significance Moscow, St. Petersburg and Sevastopol in territories subordinate to different tax authorities, registration of an organization can be carried out by the tax authority at the location of one of its OP, determined by this organization independently. An organization shall indicate information about the choice of a tax authority in a notification submitted (sent) by a Russian organization to the tax authority at its location.

The tax code provides separate order registration of the organization at the location of branches and representative offices and "simple" EPs that are not such. It is the latter, not listed in the Unified State Register of Legal Entities, that in practice raise a lot of questions. After all, it is not always possible to say with certainty in a particular situation what the organization has experienced (for example, during the construction of facilities in another area, when concluding contracts with remote workers, etc.).

Signs of a separate division.

For the purposes of applying the Tax Code of the Russian Federation and other acts of legislation on taxes and fees, a separate subdivision of an organization is recognized as such if there are the following signs provided for in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation:

1) implementation by the organization of activities through its subdivision, territorially isolated from the location of the organization;

2) creation of equipped workplaces at the place of carrying out this activity for a period of more than one month.

A subdivision of an organization that is not a branch or representative office and does not have the characteristics specified in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, is not recognized for the purposes of the Tax Code as a separate subdivision of the organization (Letter of the Ministry of Finance of Russia dated August 18, 2015 No. 03-02-07/1/47702).

Next, we give a number of examples based on letters from regulatory authorities, where they talk about the presence or absence of the above signs. At the same time, we note that, as a rule, letters end with a reference to paragraph 9 of Art. 83 of the Tax Code of the Russian Federation: in the event that taxpayers have difficulties with determining the place of registration, a decision based on the data provided by them is made by the tax authority.

Workplace equipment.

In law enforcement practice, the creation of at least one equipped stationary workplace of an organization outside its location is recognized as the creation of a separate subdivision of the organization, regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization.

The worker is understood as the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (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 very performance of such duties. At the same time, as follows from arbitration practice, neither the form of organization of work ( shift method or a business trip), nor the length of stay of a particular employee at a stationary workplace created by an organization have no legal significance for registering a legal entity at the location of its OP (see, for example, the decisions of the Federal Antimonopoly Service of the SZO dated November 2, 2007 in case No. A26-11293 / 2005, FAS SZO dated September 21, 2006 No. F08-4234 / 2006-1814A).

Signs of a separate subdivision, defined in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, there are, for example, in the case of renting an office space that is territorially isolated from the location of the organization, which is equipped for negotiations and at the location of which business trips of managers or other representatives of the organization are constantly made (Letter of the Ministry of Finance of Russia dated 10.04.2018 No. 03 -02-07/1/23401).

But in the situation with remote workers, financiers believe that there are no signs of the creation of an OP (see letters dated January 19, 2018 No. 03-02-07/1/3617, dated March 26, 2014 No. 07/17/2013 No. 03-02-07/1/27861).

According to Art. 312.1 of the Labor Code of the Russian Federation remote work is the performance of a labor function determined by an employment contract outside the location of the employer, its branch, representative office, other separate structural unit(including those located in another locality), outside a stationary workplace, territory or facility directly or indirectly under the control of the employer, provided that it is used to perform this labor function and to interact between the employer and the employee on issues related to its implementation, information - public telecommunications networks, including the Internet.

In these letters, the Ministry of Finance, with reference to paragraph 9 of Art. 83 of the Tax Code of the Russian Federation, summarizes: the right to apply to the tax authority at the location of the organization, which makes a decision based on the documents submitted by the organization, on the implementation of remote work by its employees.

Territorial isolation.

The Tax Code does not define what is understood for the purposes of applying the legislation on taxes and fees under the territorial isolation of a subdivision of an organization. At the same time, arbitration practice on the issue under consideration is not unambiguous. Thus, in the decisions of the FAS SKO dated November 29, 2006 in case No. F08-6161 / 2006-2552A, the FAS SZO dated November 2, 2007 in case No. A26-11293 / 2005 noted that, based on the provisions of Art. 11 of the Tax Code of the Russian Federation, it was concluded that territorial isolation means the location of a structural unit of an organization geographically separate from the parent organization and outside the administrative-territorial unit of its registration, controlled by one or another tax authority. That is, a subdivision is territorially isolated from the parent organization if it is located in the territory where tax accounting is carried out by a different tax authority than the one in which the organization is registered as a taxpayer (see Letter of the Ministry of Finance of Russia dated April 21, 2008 No. 03-02-07/2-73).

One of the identifying features of a separate subdivision of an organization that is not a branch or representative office, in law enforcement practice, is also recognized as the address at which this subdivision carries out activities, which differs from the address (location) of the organization itself.

The Ministry of Finance is of the same opinion (see, for example, letters dated 05.05.2017 No. 03-02-07/1/27605, dated 04.25.2017 No. 03-02-07/1/24969, dated 10.25.2016 No. 03- 02-07/1/61934, dated 06/17/2016 No. 03-02-07/1/35414), from which it follows that the territorial isolation of divisions is determined by independent addresses.

Taking into account the above, the financial department believes that, for example, at the place where the organization performs road works, which is not the object of addressing, in the absence of signs of OP, defined in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, there are no grounds for registering this company with the tax authorities (Letter dated 04.09.2015 No. 03-02-07/1/51191).

For your information:

The address is a description of the location of the addressing object, structured in accordance with the principles of organization local government in the Russian Federation and including the name of the element planning structure(if necessary), an element of the road network, as well as a digital and (or) alphanumeric designation of the addressing object, allowing it to be identified (clause 1, article 2 of the Federal Law of December 28, 2013 No. 443-FZ). Information about addresses is entered in the state address register, formed in accordance with the specified law.

So, according to the explanations of the Ministry of Finance, one of the identifying features of an EP that is not a branch or representative office is the address at which this EP operates, which differs from the address (location) of the organization itself.

At the same time, according to the Federal Tax Service, the implementation of activities by an organization by maintaining a unified technological process using a complex of buildings and structures located on a land plot in the territory subordinate to the tax authority, in which the specified organization is registered at the location, does not lead to the creation of separate subdivisions .

In practice, the following situation is possible. The warehouse of the organization was registered with the tax authority as a separate subdivision, since the location of the warehouse and the organization did not match. Organization changed legal address, as a result of which the location of the separate subdivision (warehouse) and the head organization coincided. In this regard, the location of the warehouse of the organization has become territorially not isolated from the location of the organization, therefore, in relation to this warehouse there are no signs of a separate unit and it should be removed from tax accounting(Letter of the Ministry of Finance of Russia dated July 8, 2013 No. 03-02-07/1/26374).

So, a separate subdivision may have the status of a branch or representative office, or may not be such. For the purposes of tax accounting, the main thing is that there are two signs - territorial isolation from the parent company and the availability of equipped stationary jobs.

In the event that the taxpayer has difficulty in determining the place of registration, he, by virtue of clause 9 of Art. 83 of the Tax Code of the Russian Federation, has the right to apply to the tax authority. The decision will be made based on the data provided by the taxpayer.

In the Civil Code there is such a thing as a separate subdivision - this is a subdivision 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
Optimization of management of structural divisions in other regions
The desire of the organization to bring production closer to the sources of raw materials the requirements of environmental legislation on the location of hazardous and hazardous industries away from settlements

Signs of a separate division

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

The equipment of a stationary workplace means the creation of all the conditions necessary for the performance of labor duties, as well as the performance by the employee of such duties (letter of the Ministry of Finance dated 07.28.2011 N 03-02-07 / 1-265, resolutions of the Federal Antimonopoly Service of the North Caucasus District dated 06.20. F08-3590 / 2007-1449A, Federal Antimonopoly Service of the North-Western District of November 2, 2007 in case A26-11293 / 2005).

Separate divisions are divided into

Branches
Representations
OP in tax law

The Company may create branches and open representative offices by decision general meeting members of the society. Branches and representative offices are separate subdivisions 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 the Tax Code of the Russian Federation and other branches of legislation do not contain the concept of “structural subdivision of an organization”, paragraph 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 should be followed, according to which structural subdivisions of an organization should be understood as branches, representative offices, and departments , shops, sections, sectors, etc.

Functions of the Representative Office and the Branch of the Legal Entity

Representative offices exclusively represent the interests of the Company and carry out their protection, while the 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 the OP mean the conclusion 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 the employment contract are, among other things, the place of work, the labor function, the conditions that determine the nature of the work. When carrying out activities of a traveling nature, there are no grounds for registering the organization with the tax authority at the place of such activities (letters of the Ministry of Finance of Russia dated 03/01/2012 N 03-02-07 / 1-50, dated 07/28/2011 N 03-02 -07/1-265). For example, when employees visit various organizations, when installing equipment or programs said employees do not operate in the office of the organization (own or rented).

The same applies to workers who work directly at home.

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

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

If the Internet is used to perform a labor function and to interact between the employer and the employee on issues related to its performance, 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 remote work is the performance of a labor function defined by an employment contract, in particular, outside a stationary workplace. Thus, remote work does not imply the equipment of a stationary workplace. Therefore, regardless of how long a remote worker is involved, a separate subdivision is not formed.

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

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

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

The above signs in the aggregate mean that the organization operates through its separate division. For the purposes of tax control, a Russian organization at the place of such activity (the 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 division

The creation of a stationary workplace can be confirmed

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

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

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

USN when registering a separate subdivision

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

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

If the EP 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 PFR and the FSS of the Russian Federation at its location.

The organization, which includes the EP, is obliged to register with the tax authority at the location of each of its OP.

Types of services from AAA-Investments LLC

Registration of companies (LLC/IP; PJSC/JSC)
Registration of non-profit organizations
Registration of changes
Purchase and sale of a share
Changes in the Criminal Code
Changes in the types of activities of the company (OKVED)
Bringing the charter in line with Federal Law N 312-FZ
Change of name, legal address
Liquidation and reorganization of LLC/PJSC/JSC (CJSC)
Termination of activities as an individual entrepreneur
Other services
Entry into the register of small businesses in Moscow

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"Tax Bulletin", 2010, N 3

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

<1>See the Resolution of the Thirteenth Arbitration Court of Appeal dated July 16, 2007 in case N A26-11293/2005.
<2>See Letter from the Federal tax service dated 12/29/2006 N ШТ-6-09/1275@.

Sign of the territorial isolation of the unit

There is no explanation of the concept of territorial isolation of subdivisions in the tax legislation. According to taxpayers, territorial isolation implies that the location of the main organization and its subdivisions are located in different administrative-territorial objects, determined in accordance with OKATO.

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

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

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

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

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

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

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

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

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

The concept of "workplace"

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

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

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

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

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

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

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

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

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

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

What workplaces can be considered equipped?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Criteria for recognizing a workplace as stationary

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

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

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

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

The form of organization of work (shift method or business trip), the period of stay of a particular employee at the stationary workplace created by the organization (Letters of the Ministry of Finance of Russia dated 10.04.2009 N 03-02-07 / 1-176, dated 19.12.2008 N 03 -02-07 / 1-522, Resolution of the Federal Antimonopoly Service of the North Caucasus District of November 29, 2006 N F08-6161 / 2006-2552A in case N A32-38550 / 2005-23 / 1025).

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

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

Location of the separate subdivision

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

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

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

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

In some court decisions, the main qualifying sign of the creation of a separate subdivision is considered to be its actual functioning or the ability to such functioning (Resolutions of the Federal Antimonopoly Service of the Moscow District of 04/08/2009 N KA-A41 / 2428-09 in case N A41-11518 / 08, the Ural District of 01.10. 2007 N F09-11609 / 06-C3 in case N A47-5768 / 06, Northwestern District dated November 2, 2007 in case N A26-11293 / 2005<1>).

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

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

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

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

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

Confirmation of the fact that employees perform labor duties in a separate subdivision is necessary only to qualify the organization’s actions through a separate subdivision (Resolution of the Federal Antimonopoly Service of the Moscow District dated August 13, 2009 N KA-A40 / 7409-09 in case N A40-92222 / 08-140-460), but not to confirm the very fact of its creation. A separate subdivision will also arise if no activity is carried out in it at all (for example, there is a room belonging to the organization, and there is only a watchman in it). Moreover, mandatory confirmation is not required that "separate divisions provided services to third parties"<1>.

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

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

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

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

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

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

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

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

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

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

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

The moment of creation of a separate division

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

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

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

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

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

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

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

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

A similar inaccuracy is also present in the Resolutions of the Federal Antimonopoly Service of the Urals District dated February 7, 2008 N F09-141 / 08-C2 in case N A07-23174 / 06, dated 10.01.2007 N F09-11609 / 06-C3 in case N A47-5768 / 06 , dated 06/28/2006 N F09-5528 / 06-C7 in case N A50-44261 / 05, dated 02/14/2006 N F09-583 / 06-C7 in case N A60-28560 / 05.

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

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

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

A.P. Zrelov

member of the Improvement Council

tax legislation

and law enforcement practice

at the Chamber of Commerce and Industry of the Russian Federation

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

General provisions on separate divisions

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

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

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

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

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

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

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

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