A separate structural unit is a representative office or branch of an enterprise, at the location of which at least one workplace has been formed for a period of more than 1 month. It will be considered educated regardless of whether the information about it is reflected in the constituent and other organizational and administrative documentation, and on the scope of authority with which it is vested. This provision is established in Art. 11, p. 2, Tax Code.
Workplace specifics
In NK there is no definition of it. However, it is in the TC. A worker is recognized as a place where an employee needs to arrive to fulfill his duties and which is indirectly or directly controlled by the employer. This definition is contained in Art. 209 of the Labor Code. Recently, "virtual" offices have become very popular. This refers to the remote work of specialists at home. The employee’s apartment and property are not under the control of the tenant. In this regard, in this case, the workplace in the normative sense is not formed. Accordingly, such a remote office cannot be considered a separate unit.
In addition, the workplace should be formed by the enterprise itself. For example, an organization may lease a property or acquire it into ownership. If a company sends its employee to another company for a period exceeding a month, and the host creates a workplace, then the creation of a separate unit is also out of the question. In this case, the specialist will be considered seconded under Art. 166 TC. Another important condition is the equipment of the workplace. This means that it must be properly equipped for the employee to fulfill his duties.
Territorial isolation
This is the second key feature of a branch or representative office. The definition of territorial isolation is also absent in the Tax Code. According to the meaning of the sign itself, we can assume that we are talking about a different address for the location of the branch / representative office. It should be different from the location of the main organization indicated in its constituent documentation. In Art. 11, paragraph 2, of the Tax Code it is indicated that the address of the location of a separate subdivision is the place where the main enterprise conducts its business through a branch / representative office.
Classification
In accordance with the Civil Code, a separate division can be formed in the form of a branch or representative office. The definition of the latter is given in Art. 55, p. 1, Civil Code. According to the norm, a representative office is a separate division of a legal entity that acts in the interests of the main enterprise and carries out their protection. The definition of a branch is somewhat wider. It is considered a separate unit, which is located outside the territory of the main company, carries out all its functions, or only some, including those associated with representation.
Important point
The creation of a separate unit is carried out by decision of the general meeting. During it, key issues related to the activities of the branch or representative office are discussed. After the decision is made, an order is issued. A separate unit may, but is not required to have, a manager. However, information about the branch or representative office should be indicated in the constituent documentation of the main enterprise. This requirement is contained in Art. 55, p. 3, Civil Code. Registration of a separate unit is carried out by sending to the authorized body the relevant data. Information is entered in the register. From this moment on, a branch or representative office will be considered formed. It should be noted that the separate units are not legal entities and do not act as subjects of civil legal relations. However, they have certain responsibilities. In particular, in accordance with Art. 19 NK separate division must deduct taxes.
Registration
The opening of a separate unit involves the submission of documents to the territorial body of the Federal Tax Service. The main organization operating through a representative office or branch is required to send an application for registration within 1 month. from the date of formation. Registration of a separate unit is carried out in the body of the Federal Tax Service, located at the address of his work, and not the main enterprise. There are situations when a representative office (or branch) is created, but activity through it is not conducted. According to the law, it is not necessary to register in this case. However, if after 2 months, for example, the main enterprise begins work through its separate division, it will have an obligation to file an application with the territorial body of the Federal Tax Service. But in this case there will be a violation of the deadlines established by law. In this regard, it is advisable to register for 1 month from the moment of opening the unit, regardless of whether activities are carried out through it or not. If a representative office / branch is formed in the territory of the Moscow Region, within which the main enterprise is located, a notification is submitted to the territorial body of the Federal Tax Service in the manner established by Art. 23, p. 3, Tax Code.
Nuance
In practice, an enterprise may form several branches or representative offices on the territory of one MO, but in areas subordinate to different control bodies. In this case, registration is allowed in the inspection at the location of one of the separate divisions of the choice of the main office. This provision is enshrined in Art. 83, paragraph 4 of the Tax Code. The main company must notify in writing the territorial authority of the Federal Tax Service, which it has chosen. Accordingly, the declaration on a separate division will be handed over precisely to this inspection.
Responsibility for Tax Code
The Code contains two rules related to the registration of EPs. In Art. 116 of the Tax Code provides for a fine in case of violation of the deadline by which an application must be submitted. Its value is 5 thousand rubles, and if the period is overdue for more than 3 months, then 10 thousand rubles. In Art. 117 Tax Code establishes liability for the implementation of the activities of the enterprise without registration. The violator in this case faces a monetary penalty in the amount of 10% of the profit, but not less than 20 thousand rubles. If the activity without registration has been carried out for more than 3 months, the fine is doubled (20% of income, but not less than 40 thousand rubles).
Separate Division Income Tax
The rules for his deduction are determined by Art. 288 Tax Code. Taxes of a separate division and the amount of advances in the part paid in favor of the Fed. budget are listed without distribution by branches / representative offices, at the location of the main enterprise. This rule is established in paragraph 1 of the above article. Amounts deducted to regional budgets are distributed between branches / representative offices and the main office. Payments are made to the addresses where the main enterprise and each separate division are located. The profit received by the branch / representative office affects the proportions of the distribution of mandatory contributions.
Responsible department
If an enterprise has several units within the same region, then it can choose a responsible structure and make mandatory contributions to the budget through it. The payment amount in this case will be calculated in accordance with the share of income determined by the aggregate indicators of the branches / representative offices. This rule is provided for in paragraph 2 of Art. 288 Tax Code. The head office informs the Federal Tax Service authorities at the location addresses of the remaining representative offices / branches about which particular subdivision was chosen as the responsible one. Notifications are also sent when the order of deduction of payments, the number of branches and other circumstances affecting the fulfillment of obligations to the state are changed.
Location OP
Currently, a common concept is a legal address. However, many mean by it the actual location of the organization. Meanwhile, it is determined at the state registration address. It, in turn, coincides with the place of work of the permanent executive body or a person who is vested with the relevant authority. This position is established in Art. 54, p. 2, Civil Code. Information about the location of the executive body is indicated in the constituent documentation.
In addition, a concept such as the actual address is used. He contacts the place where the organization operates. Some territorial inspectorates of the Federal Tax Service link the actual address to a separate unit, and the legal one to the main enterprise. According to experts, this approach cannot be called true. Separate subdivision should first of all be territorially separated from the main office, and information on this should be contained in the constituent documentation. If the organization works at an address other than that specified in the charter, but there is no information about it in it, then it cannot be recognized as a representative office or branch.
Separate Division Closure
Upon liquidation of a branch / representative office, the main enterprise is obliged to amend the constituent documentation. Deregistration in the inspection of the Federal Tax Service will be based on information from the register. For this, form -09-3-2 is filled out and sent to the appropriate control body. The closure of a separate division is accompanied by deregistration in the FSS and the FIU. Relevant notifications must be sent within one month from the date of the decision on liquidation.
Special cases
It is necessary to take into account the scheme by which a separate unit operates. The balance, for example, may not be maintained, the current account and employees may be absent. In this case, accordingly, the representative office / branch is not registered with the FSS and PFR. The Ministry of Health and Social Development, however, emphasizes in one of the explanatory letters that the main company is obliged to inform the territorial departments of the funds at the address of its location about the liquidation of any unit, regardless of whether it has a current account, a separate balance sheet, accruals in favor of employees and other individuals. Thus, notifications are sent anyway. If a separate subdivision of an LLC has been registered in the funds, the main organization shall send:
- The FSS and the FIU report on liquidation. It is compiled in any form.
- In the FIU at the address of the accounting unit:
- application for deregistration of the enterprise at the location of the branch / representative office in the territorial office of the fund;
- copy of the decision to eliminate the OP.
After receiving these documents, the FIU deregisters the unit within five days.
Reporting Features
When deciding on the liquidation of a branch / representative office, the updated documentation for the current and upcoming periods shall be submitted to the inspection at the address of the main office. On the title page of the declaration, the code 223 is affixed in the location line. At the top, indicate the checkpoint assigned to the company at the location of the liquidated branch / representative office. Section No. 1 affixes the OKATO code of the locality in whose territory the activities were carried out and taxes of a separate division were paid.
Dismissal of employees of the OP located in another locality
Termination of labor contracts is carried out in the manner prescribed for the liquidation of the organization (Article 81, paragraph 1 of the Labor Code). From the explanation of the Armed Forces it follows that the territory located outside the given locality is recognized as another locality. The rules stipulate that upon liquidation of an enterprise, employees are notified of this no later than 2 months in advance. until the termination of the contract. The notice is drawn up in writing and is given for review to each employee under signature.
In addition, an order is issued to terminate the employment relationship. It is compiled by f. T-8 or in a form that the company has developed independently. Each employee also gets acquainted with the order by signature. Mandatory entry is made in the workbook and personal card of the employee. In this case, a reference to Art. 81 shopping mall. The employee receives the workbook on the day of termination of the contract. At the same time, the employee signs in the accounting book and personal card. Legislation obliges the employer to make full settlements with employees, including severance pay. Its size is equal to the average earnings per month. Severance pay is paid for 2 months.
Termination of the contract with the employee of the OP located in the same area as the main enterprise
Upon liquidation of a representative office / branch, employees shall be dismissed in the manner prescribed for the reduction of staff. In this case, the employer must:
- To justify the need for their actions with economic, organizational, technical reasons.
- Offer an employee a job taking into account his professional qualities and state of health. The employee should be offered all available and relevant to the needs of the citizen vacancies within the area. If it is stipulated in the labor or collective agreement, the tenant informs the employee about the availability of places outside the territory in which the OP is liquidated. If these requirements are not followed, the employee has the right to demand reinstatement.
- Comply with the requirements of Art. 179 TC. With a reduction in the organization, primarily employees with a higher qualification level, as well as those whom it is forbidden to dismiss, remain. The latter, for example, include pregnant women.
Employees with whom contracts will be terminated are notified of this no later than 2 months before the date of dismissal. The procedure is carried out with the mandatory participation of the trade union body of workers. In the event of a dispute, representatives of the employer and employees may contact the labor inspectorate.
Personal income tax
According to the general rules, enterprises submit data on the income of individuals to the Federal Tax Service Inspectorate, acting as tax agents. Information is provided at the end of the period during which accruals and payments were made, no later than April 1. If a separate subdivision is liquidated in the middle of the year, the procedure established in the letter of the Federal Tax Service No. KE-4-3 / 4817 dated 03/28/2011 is valid. Information on the income of citizens who are employees of representative offices / branches is provided to the Federal Tax Service Inspectorate at the address of the registration office of which is transferred to personal income tax. If the unit's activities cease in the middle of the year, information is transferred for the last reporting period. It is the time period from the beginning of the year to the end of liquidation.
Deregistration in the inspection of the Federal Tax Service
An organization closing a separate division is obliged to inform the control body of its location about this. This must be done within three days from the date of approval of the liquidation decision. You can send a notification in various ways. For example, the manager may provide notice to the inspection in person or through his representative. The law allows sending a document by registered mail, as well as through information communication channels. In the latter case, the notification must be certified by an enhanced digital signature of the director of the enterprise or an employee with the appropriate authority. After receiving the message, the Federal Tax Service inspectorate deregisters the accounting authority within ten days. The supervisor sends the organization a corresponding notice. It should be remembered that if an on-site audit is carried out in relation to the enterprise, then at the location of the unit it will not be deregistered until its completion.
Additionally
In case of violation of the terms of notification of the inspection of the Federal Tax Service on the liquidation of a separate unit, the main company may be held liable. It is set in Art. 126, p. 1, Tax Code. In addition, administrative punishment is provided for the head of the organization. It is defined in Art. 15.6 Administrative Code. , .