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- Law and explanations of officials
- Formalization of empowerment
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At first glance, the rules for calculating and paying insurance premiums established by Chapter 34 of the Tax Code of the Russian Federation are almost no different from the provisions of the Federal Law of July 24, 2009 N 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Mandatory Fund medical insurance" (Law No. 212-FZ). But it’s “almost”.
Thus, Law N 212-FZ ordered a separate division of the insurer to fulfill the organization’s obligations to pay insurance premiums (monthly mandatory payments), as well as the obligation to submit calculations for insurance premiums at its location, provided that the division has a bank account and a separate balance sheet , as well as if they received payments and other remuneration in favor of individuals.
If the above conditions were not met, then the payment of fees and submission of reports for the separate unit was carried out by the parent organization at its location (including if the separate unit was located outside the territory of the Russian Federation (clause 14 of Article 15 of Law No. 212-FZ)).
Clause 11 of Article 431 of the Tax Code of the Russian Federation also obliges the organization to pay insurance premiums and submit a calculation of insurance premiums (calculation form approved by Order of the Federal Tax Service of Russia dated October 10, 2016 N ММВ-7-11 / [email protected] ):
- at its location and
- at the location of separate divisions that accrue payments and other remuneration in favor of individuals.
The date of submission of the specified calculation is no later than the 30th day of the month following the settlement (reporting) period, to the tax authority at the location of the organization and at the location of separate divisions of organizations, which again accrue payments and other remuneration in favor of individuals (p 7 Article 431 of the Tax Code of the Russian Federation). The amount of insurance premiums payable at the location of a separate subdivision is determined based on the size of the base for calculating insurance premiums related to this separate subdivision. The calculation period for insurance premiums is the calendar year, the reporting periods are the first quarter, six months, nine months of the calendar year (Article 423 of the Tax Code of the Russian Federation).
There are no other rules regarding the responsibilities of separate units located on the territory of the Russian Federation regarding insurance premiums in Chapter 34 of the Tax Code of the Russian Federation.
The concept of a separate unit
In the Tax Code of the Russian Federation, a separate division of an organization is understood as any territorially separate division from it, at the location of which stationary workplaces are equipped.
A separate division of an organization is recognized as such regardless of whether or not its creation is reflected in the constituent or other organizational and administrative documents of the organization, and regardless of the powers vested in the specified division. In this case, a workplace is considered stationary if it is created for a period of more than one month. If a division created by an organization meets all of the listed criteria, then the taxpayer has an obligation to register for tax purposes at the location of such a separate division.
Let us recall that for the purpose of tax control, taxpayers register for tax purposes not only at the location of the organization, but also at the location of their separate divisions, as indicated by clause 1 of Art. 83 Tax Code of the Russian Federation. At the same time, registration at the location of the taxpayer’s separate division depends on the form of the separate division. Thus, registration of a taxpayer at the location of a branch or representative office is carried out automatically by the tax authority on the basis of information contained in the Unified State Register of Legal Entities (clause 3 of Article 83 of the Tax Code of the Russian Federation).
Tax registration of a taxpayer at the location of its separate division of a different form is carried out by the tax authorities on the basis of a notification from the organization sent by the tax authority within a month from the date of creation of the OP. The Ministry of Finance of Russia gives similar explanations on this matter in letter No. 03-02-07/1/9377 dated February 19, 2016, clarifying that the day of creation of a separate division is considered the date of commencement of the organization’s activities through an OP. This position is also supported by the arbitrators in the resolution of the Federal Antimonopoly Service of the Ural District dated December 3, 2008 No. F09-9013/08-S2 in case No. A71-4289/08. After receiving the message, tax inspectors must, within five days, register the taxpayer at the location of the OP and send him a corresponding notification.
Please note that if the taxpayer violates the specified deadlines or completely ignores the registration requirement, the legal entity and its officials will be fined.
In the first case, a fine of 200 rubles, and for the manager the fine can be 500 rubles, as indicated by the provisions of Art. 126 of the Tax Code of the Russian Federation and Art. 15.6 Code of Administrative Offenses of the Russian Federation. Similar explanations are given in the letter of the Ministry of Finance of Russia dated April 17, 2013 No. 03-02-07/1/12946.
In the second case, when conducting illegal activities through an OP, the fine may already be 40,000 rubles, as indicated in Art. 116 of the Tax Code of the Russian Federation.
The Tax Code of the Russian Federation established not only the rights of insurance premium payers, but also determined their responsibilities.
According to clause 3.4 of Art. 23 of the Tax Code of the Russian Federation, payers of insurance premiums are obliged to:
pay insurance premiums established by the Tax Code of the Russian Federation; keep records of objects subject to insurance premiums, the amounts of calculated insurance premiums for each individual in whose favor payments and other remuneration were made, in accordance with Chapter 34 of the Tax Code of the Russian Federation; submit calculations of insurance premiums in accordance with the established procedure to the tax authority at the place of registration; submit to the tax authorities and their officials in the cases and in the manner prescribed by the Tax Code of the Russian Federation, documents necessary for the calculation and payment of insurance premiums; submit to the tax authorities and their officials in the cases and in the manner prescribed by the Tax Code of the Russian Federation information about insured persons in the individual (personalized) accounting system; for six years, ensure the safety of documents necessary for the calculation and payment of insurance premiums; inform the tax authority at the location of the Russian organization that pays insurance premiums about the vesting of a separate division (including a branch, representative office) created on the territory of the Russian Federation with the authority to accrue payments and rewards in favor of individuals within one month from the date of vesting it with the corresponding powers; bear other responsibilities provided for by the legislation of the Russian Federation on taxes and fees.
Consequently, the organization that created the OP, as a payer of insurance premiums, is obliged to report to the tax office not about the fact of its creation, but specifically about vesting such a structure with the authority to charge payments and other remuneration in favor of individuals.
Note! This obligation arises for the payer of insurance premiums in relation to separate divisions created on Russian territory, vested with the specified powers after January 1, 2017, which is expressly stated in clause 2 of Art. 5 of Law No. 243-FZ.
In accordance with paragraph 1 of Art. 4 of Law No. 243-FZ, the Pension Fund of the Russian Federation and its territorial bodies are obliged to transfer information to the tax authorities at their location by 1.02.17, including information about separate divisions of Russian organizations registered as payers of insurance premiums, which are vested with the authority to calculate payments and other remuneration in favor of individuals, as of January 1, 2017, in electronic form in the manner determined by agreement of the interacting parties.
In other words, when creating an OP and registering it, the payer must proceed from whether he intends to immediately vest his OP with the authority to charge payments and other remuneration in favor of individuals or not. If the OP will not independently accrue payments in favor of individuals, including its employees, then it is sufficient to inform the tax authority only about the fact of the creation of the OP, otherwise it should be notified specifically about the creation of the OP empowered to accrue payments in favor of individuals.
Please keep in mind that failure to comply or improper compliance with this requirement of the Tax Code of the Russian Federation will lead to the same fines that are established for taxpayers
Formalization of empowerment
Neither the legislation on insurance premiums nor the Tax Code of the Russian Federation specifies what documents must confirm the fact that a separate unit has been vested with the powers in question. It is logical to assume that this fact is documented in an internal administrative document of the organization, for example:
- regulations on the branch (representative office, other separate division), approved by order of the head of the organization;
- by a special order from the head of the organization to vest a separate division with the authority to accrue payments and remuneration to individuals.
In the first case, a separate unit receives powers from the moment of its formation, in the second - from the date specified in the order or directive of the head of the organization.
If management considers it inappropriate to further exercise the relevant powers, then an order should be issued to deprive the separate division of the authority to accrue payments and remuneration to individuals. And accordingly, report this to your tax office within a month.
It is desirable that the start date for the separate division to make payments and remunerations to individuals falls on the first day of the calendar month. It is from this moment that the payer must submit calculations for insurance premiums at the location of the organization and the location of the separate division.
If the date falls on the first day of the quarter, then the organization will not have to submit reports on insurance premiums at the location of the separate unit for the previous reporting period.
Registration of a separate unit in the Pension Fund of Russia
If currently, when creating an OP, an organization registers with the Pension Fund of the Russian Federation and the Federal Social Insurance Fund of the Russian Federation at the location of its OP on the basis of an application submitted by it, then from next year there will be no need to specifically apply to the Pension Fund for this. Based on the received message, the tax authorities, in the order of information exchange, will transfer this information to the Pension Fund, which within three working days will register such an OP independently, as indicated in paragraph 2 of Art. 11 of the Federal Law of December 15, 2001 No. 167-FZ “On compulsory pension insurance in the Russian Federation.”
Registration of a separate division in the FSS of the Russian Federation
Article 6 of the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against accidents at work and occupational diseases” establishes that registration of insurers - legal entities at the location of their separate divisions for which legal entities are open for transactions accounts in banks (other credit institutions) and which accrue payments and other remuneration in favor of individuals, are carried out in the territorial bodies of the Federal Social Insurance Fund of the Russian Federation within a period not exceeding 30 calendar days from the date of creation of such a separate unit.
Registration of separate divisions of organizations in the territorial bodies of the Social Insurance Fund of the Russian Federation is carried out in accordance with the Procedure for registration and deregistration in the territorial bodies of the Social Insurance Fund of the Russian Federation of policyholders and persons equated to policyholders, approved by Order of the Ministry of Labor of Russia dated April 29, 2016 No. 202n (hereinafter referred to as - Order No. 202n).
Registration of a legal entity at the location of their separate divisions is carried out on the basis of an application for registration submitted in writing or in the form of an electronic document using the federal state information system “Unified portal of state and municipal services (functions)” (clauses 6 and 9 of Procedure No. 202n). This application must be submitted no later than 30 calendar days from the date of creation of a separate division of the legal entity. The application form is given in Appendix No. 2 to the Administrative Regulations of the Federal Social Insurance Fund of the Russian Federation for the provision of state services for registration and deregistration of policyholders - legal entities at the location of separate divisions, approved by Order of the Ministry of Labor of Russia dated October 25, 2013 No. 576n (hereinafter referred to as Regulation No. 576n).
In this case, the legal entity must attach to the application copies of documents confirming the existence of an account with a bank (other credit institutions) and the accrual of payments and other rewards in favor of individuals (clause 10 of Procedure No. 202n, clause “a”, clause 14 of the Regulations No. 576n).
Please note that an applicant - a legal entity for registration as an insurer at the location of a separate unit may, on its own initiative, submit copies of the following documents to the FSS of the Russian Federation (clause “a”, clause 19 of Regulation No. 576n):
certificate of state registration of a legal entity; certificates of registration of a legal entity with the tax authority; notifications about registration with the tax authority at the location of the separate division; documents issued by territorial bodies of the Federal State Statistics Service and confirming the types of economic activities (OKVED code, name of the type of activity) carried out by a legal entity at the location of a separate division.
Submitting reports if there is a separate division
The amounts of insurance premiums calculated by the payer of insurance premiums, including those with an OP, are subject to mandatory payment.
By virtue of the general rule of paragraph 1 of Art. 431 of the Tax Code of the Russian Federation, payment of insurance premiums and submission of calculations for insurance premiums are made by organizations at their location and at the location of separate divisions that charge payments and other remuneration in favor of individuals. In other words, the procedure for paying tax and the address for submitting reports depends on whether the OP of the organization is vested with the authority to accrue payments in favor of individuals or not.
If the OP does not have such powers, then the payment of tax and reporting of contributions is submitted by the payer only to the location of the organization itself. Otherwise, payment of contributions and submission of reports is carried out both at the location of the organization itself and at the location of the OP.
In this case, the amount of insurance premiums payable at the location of the OP is determined based on the size of the base for calculating insurance premiums related to this separate division.
The amount of insurance premiums that is payable at the location of the organization that includes the OP is determined as the difference between the total amount of insurance premiums payable by the organization as a whole and the total amount of insurance premiums payable at the location of the separate divisions.
Note! The only exception to the general rule of payment of insurance premiums is provided for by the Tax Code of the Russian Federation only in relation to separate units located abroad. In such a situation, even if the OP independently calculates insurance premiums from payments made to its employees, the payment of insurance premiums, as well as the submission of calculations for them, is carried out by the organization at its location, as indicated by clause 14 of Art. 431 Tax Code of the Russian Federation.
Reporting on insurance premiums is a special calculation, the form of which was approved by order of the Federal Tax Service of Russia dated October 10, 2016 No. ММВ-7-11 / [email protected] “On approval of the form for calculating insurance premiums, the procedure for filling it out, as well as the format for presenting the calculation for insurance premiums in electronic form.”
By virtue of clause 7 of Art. 431 of the Tax Code of the Russian Federation, payers of insurance premiums submit the specified calculation to the tax inspectorate at the location of the organization and at the location of the OP that accrues payments and other remuneration in favor of individuals no later than the 30th day of the month following the billing (reporting) period.
Based on Art. 423 of the Tax Code of the Russian Federation, the calculation period is the calendar year, and the reporting periods are the first quarter, six months and nine months of the calendar year. Consequently, reporting on insurance premiums is submitted to the tax authority quarterly.
If the average number of individuals in whose favor payments and other remunerations are made for the previous year in an organization does not exceed 25 people, then reporting on contributions is submitted on paper.
If the specified limit of the average number of individuals is exceeded, calculations are provided to the tax authorities exclusively in electronic form using an enhanced qualified electronic signature via telecommunication channels.
Please note that calculations (updated calculations) for insurance premiums for reporting (calculation) periods for insurance premiums that expired before January 1, 2017 are submitted to the relevant bodies of the Pension Fund of the Russian Federation, the Federal Social Insurance Fund of the Russian Federation in the manner established by the legislation of the Russian Federation on insurance premiums , which was in force until the date of entry into force of Law No. 250-FZ.
Note! Violation of the specified deadline for submitting reports on insurance premiums entails the collection of a fine in the amount of 5% of the amount of insurance premiums not paid within the deadline established by the legislation on taxes and fees, subject to payment (surcharge) on the basis of calculation of insurance premiums, for each full or partial month from the date established for its presentation, but not more than 30% of the specified amount and not less than 1000 rubles. (clause 1 of article 119 of the Tax Code of the Russian Federation).
Message form
The notification form for Russian organizations that grant separate divisions the authority to accrue payments and rewards to individuals (and to deprive them of such powers) was approved by Order of the Federal Tax Service of Russia dated January 10, 2017 N ММВ-7-14 / [ email protected] The same Order also the format for submitting the message in electronic form and the procedure for filling out the message were approved (Appendices 1, 4 and 7 to the Order).
In the submitted message, the organization must fill out at least two pages: the title page and information about the separate division (branch, representative office).
The general requirements for filling out this form are identical to the general requirements for filling out tax returns and tax calculations.
The page “Information about a separate division (branch, representative office)” should be filled out separately in relation to each division, branch or representative office that is granted or, on the contrary, deprived of the authority to make payments to individuals.
For each case of granting and deprivation of powers, a separate message is drawn up.
On each page of information about a separate division, in the “TIN” and “KPP” fields, the TIN and KPP of the organization assigned to it when registering at its location are indicated. The separate division to which the assignment is made is represented by the code:
- 1 - if this is a branch of the organization;
- 2 - corresponds to representation;
- 3 - to another separate unit.
Information directly related to the separate division is indicated (checkpoint, name (if available), address).
Each page bears the signature of the person confirming the accuracy of the information (the head of the organization or representative) and the date. Then all pages are numbered starting from 002, etc. The result obtained with the addition of one is entered in the corresponding field of the title page.
Example 1. An organization authorizes two separate divisions to make payments to individuals. The notification sent to the tax authority must contain three pages: a title page and two pages of information.
The title page of the message provides information about the organization (name in accordance with the constituent documents, TIN, KPP, OGRN). The field “Number of separate divisions (including branches, representative offices)” indicates the number of divisions in respect of which the message is being filled out.
End of example 1. When granting the authority to accrue payments and remuneration to individuals of two separate divisions, in the field “Number of separate divisions (including branches, representative offices)” indicate 2—.
In the “Reports” field you must indicate one of the numbers:
- 1 - if it is reported that the division has been vested with the authority to accrue payments and remuneration to individuals;
- 2 - if the unit, on the contrary, is deprived of such powers.
In the section “I confirm the accuracy and completeness of the information specified in this message” you should indicate:
- 1 — if the message is signed by the head of the organization;
- 2 - when a representative of the organization signs the message.
In the second case, a copy of a document confirming the rights of the representative (power of attorney, etc.) must be attached to the message. In the same section his full name is given. and TIN.
The message can be submitted both on paper (in person, through a representative, by mail) and in electronic form.
