In accordance with clause 2 of Article 11 of the Tax Code of the Russian Federation, a separate division of an organization is any division territorially isolated from it, at the location of which stationary workplaces are equipped*.
Recognition of a separate division of an organization 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 specified division.
*A workplace is considered stationary if it is created for a period of more than one month.
The location of a separate division of an organization is the place where this organization carries out its activities through its separate division.
Accordingly, if a company creates jobs outside its location, then it has a separate division, which must be notified to the Federal Tax Service. At the same time, the creation of such a separate division may not affect the constituent documents of the company if it is not a branch or representative office.
According to the provisions of Article 55 of the Civil Code of the Russian Federation, a representative office is a separate division of a legal entity:
- located outside its location, which represents the interests of a legal entity and protects them.
A branch is a separate division of a legal entity:
- located outside its location and performing all or part of its functions , including the functions of representation. A branch may have its own name, which includes the name of the organization.
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. The heads of representative offices and branches are appointed by the legal entity and act on the basis of its power of attorney.
Representative offices and branches must be indicated in the constituent documents of the legal entity that created them.
Representative offices and branches act on behalf of the organization that created them and do not act as an independent subject of civil circulation, as a result of which the company that created them bears responsibility for their activities.
All separate divisions of organizations that meet the criteria of a branch (representative office), regardless of their name (additional office, department, etc.), are subject to the legal regime of a branch or representative office.
The article will discuss frequently arising questions regarding a separate division that is not a branch or representative office.
Notification of the opening of a separate division in the Federal Tax Service
The creation, any changes in previously provided information, or the closure of divisions must be reported to the regulatory authorities. Where to submit a message about opening a separate division? If this is not a branch or representative office, the company must report the creation of a division to the tax office at the location of the organization (not the OP). There is no additional need to report the creation of new branches or representative offices, since information about them must be indicated in the Unified State Register of Legal Entities. A message to the Federal Tax Service about the opening of a separate division must be sent no later than 1 month.
For such a case, there is an approved message form C-09-3-1. The form of notification of the creation of a separate division was approved by order of the Federal Tax Service of Russia No. ММВ-7-6/362 dated June 9, 2011.
Notification deadlines for the Federal Tax Service
According to paragraph 3 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation, organizations are required to report to the tax authority, respectively, at the location of the organization:
- About all separate divisions of a Russian organization created on the territory of the Russian Federation (with the exception of branches and representative offices), and changes to information about such separate divisions previously reported to the tax authority:
- within one month from the date of creation of a separate division of the Russian organization;
- within three days from the date of change in the relevant information about a separate division of the Russian organization.
The termination of the organization’s activities through a separate division of the Federal Tax Service must be notified within three days from the date of such termination (clause 3.1, clause 2, article 23 of the Tax Code of the Russian Federation).
Sample of filling out a message about the creation of a separate division
So, to inform the tax inspectorate that you have a separate division, you need to use the unified form C-09-3-1. In addition, the tax inspectorate has approved the procedure for filling out the form.
How to fill out form C-09-3-1? Let's figure it out.
In the header of the form, indicate the INN and KPP, you must indicate the code that identifies the tax office to which the message is being submitted.
The following is the main part of statement C-09-3-1. The name must be indicated in full, exactly as indicated in the company’s constituent documents. Next, you need to indicate the OGRN and the number of divisions. Do not be confused: in the field where you need to indicate the number of units, you must indicate the number of units, the creation of which you want to report using form No. C-09-3-1.
If the company wants to inform about the opening of a division, then in the “Informs” field you must put 1. In the “This message is compiled on” field, indicate the number of sheets. If you want to open more than one division, then the number of sheets C-09-3-1 will increase, since a separate sheet is filled out for each division that the company wants to open. The number of sheets is indicated in the following format “2—”. In the field “with a copy of the document attached,” you must write the number of sheets of copies of documents confirming the authority of the representative.
Next, the form is divided into 2 parts; the manager or representative of the company fills out his contact information (phone number, email address, etc.) on the left side.
The second sheet of the message about the opening of a separate division (you will find a sample form below) contains information about the separate division. Enter the TIN and KPP of the organization, page number. The “Checkpoint 3” field is filled in if the inspection is notified of changes.
In the “Name” field, indicate the name of the department, if available. Then provide the full address of the unit's location. Please note how this item is filled out in the sample application C-09-3-1 presented below. If you are filling out information about the address of a separate division for Moscow and St. Petersburg, then you do not need to fill in the “District” and “City” fields. In the “Creation Date” field, enter the date when the separate division was created. The application is signed by a person confirming the accuracy of the information presented.
Filling in the fields
S-09-3-1 is filled out with a black pen or, increasingly, electronically. As in other accounting documents, information is entered in capital letters (printed) - 1 character per cell.
Although the base document is only 2 pages, you can print as many copies of the second page describing the changes as you need.
Let’s say that if an enterprise transfers (changes addresses) three OPs, then the document will increase to 4 pages. And this should be marked in the appropriate cell:
What matters is on whose behalf the form is submitted. If this is the director of the enterprise (code - 3), then in the column “Name of the document confirming authority” we indicate “Passport” and in the line below - the series and number of the passport. If the applicant is a representative of an organization (code - 4), then the name is a power of attorney. These documents must be present when submitted in person to the Federal Tax Service.
Checkpoints should be demarcated. The code of the main legal entity is indicated on the title page, and the subdivisions are indicated in the appendix. Since, by law, not every company has a registration reason code, this field may be left blank. After submitting S-09-3-1, the OP can be assigned a checkpoint, which is noted at the bottom of the form (see appendix).
Adding a new division:
- On page 0001, put 1 in the “Reports” field.
- On page 0002, leave the “Informs the type of change” and checkpoint fields blank.
- Enter the name of the representative office.
- We indicate the address and activity according to OKVED.
- Full name and contact details of management are optional.
How to enter a new OP in form S-09-3-1
Change of name
- On page 0001, put 2 in the “Reports” field.
- On page 0002, check the box in paragraph 1.2.
- We indicate the checkpoint of the existing department.
- We indicate a new name.
- Fill in the existing address fields.
- We indicate the date of renaming in clause 2.4.
- We indicate activities according to OKVED.
How to change the name of the OP in S-09-3-1
Although this information is not displayed in the footnotes, you need to know that the telephone number is not a required field.
Cash desk of a separate division
If cash transactions are carried out in a separate division, then it is obliged to maintain a cash book.
This must be done on the basis of paragraph 9, clause 2.5 of the Bank of Russia Regulations dated October 12, 2011. No. 373-P “On the procedure for conducting cash transactions with banknotes and coins of the Bank of Russia on the territory of the Russian Federation”, in accordance with which:
- sheets of the cash book of a separate division are selected and bookleted by a legal entity for each separate division.
According to clause 5.2 of Regulation No. 373-P, entries in the cash book are made by the cashier for each incoming and outgoing cash order issued for cash received and issued.
Based on clause 5.6 of Regulation No. 373-P, a separate division, after displaying in the cash book the amount of cash balance at the end of the working day, must transfer the sheet of the cash book for this working day no later than the next working day to the legal entity.
As the Federal Tax Service notes in its Letter dated May 17, 2013. No.AS-4-2/8827O:
“Thus, Regulation No. 373-P establishes the obligation to maintain a cash book, which must account for incoming cash, not only by the organization, but also by each separate division of the organization.
The above is confirmed by the decision of the Thirteenth Arbitration Court of Appeal dated March 19, 2013. in case No. A56-59643/2012.
Violation of the procedure for conducting cash transactions, expressed in non-receipt of cash, due to failure to maintain (failure to register) a cash book and cash documents by separate divisions of the organization, in accordance with Part 1 of Article 15.1 of the Code of Administrative Offenses of the Russian Federation, entails the imposition of an administrative fine:
- for officials in the amount of four thousand to five thousand rubles;
- for legal entities - from forty thousand to fifty thousand rubles.”
Separate unit or business trip?
According to 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.
According to clause 1 of Article 83 of the Tax Code of the Russian Federation, organizations that include separate divisions located on the territory of the Russian Federation are subject to registration with the tax authorities at the location of each of their separate divisions.
At the same time, if the taxpayer has difficulties determining the place of registration with the tax authority, then the decision based on the data submitted by him is made by the tax authority (clause 9 of Article 83 of the Tax Code of the Russian Federation).
Tax authorities make this decision based on the documents submitted by the organization, on the basis of which it carries out the relevant activities:
- or at the location of the organization,
- or at the place where the organization operates.
As the Ministry of Finance notes in its Letter dated 08/02/2013 No. 03-02-07/1/31001:
“A separate unit is recognized as such regardless of the form of work organization, the specific employees performing a specific job, or the period of stay of a specific employee at a stationary workplace. »
At the same time, there is no definite answer to the question of whether it is necessary to create a separate division in the case of:
- long business trips for employees,
- providing services to customers in other regions,
- and so on.
the department does not give, referring to the above norms of the Tax Code of the Russian Federation.
Accordingly, if a company does not have its own clear position on the issue of the establishment of a separate division, it can contact its tax office, which will decide whether the division should be a separate division or not.
The Ministry of Finance adheres to a similar position when answering questions about the creation of separate divisions in the event of concluding employment contracts with remote workers.
So, in his Letter dated July 17, 2013. No. 03-02-07/1/27861 The Ministry of Finance writes the following:
“According to Art. 312.1 of the Labor Code of the Russian Federation, remote work is the performance of a labor function specified in an employment contract 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 control of the employer, subject to the use of public information and telecommunication networks, including the Internet, to perform this job function and to carry out interaction between the employer and employee on issues related to its implementation.
The definition of remote work contains features that differ from the characteristic features of a separate division of the organization specified in paragraph 2 of Art. 11 of the Code.
In accordance with paragraph 9 of Art. 83 of the Code, if a taxpayer has difficulty determining the place of registration with the tax authority, a decision based on the information provided by him is made by the tax authority.
The taxpayer has the right to contact the tax authority at the location of the organization or the tax authority at the place where the organization operates, which makes this decision based on the documents submitted by the organization on the performance of remote work by its employees.”
The Ministry of Finance adheres to the same position in its Letter dated July 4, 2013. No. 03-02-07/1/25829.
In our opinion, no appeals to the tax authorities on this issue are necessary to draw a simple and obvious conclusion:
- Due to the fact that the labor function of a remote worker is performed outside a stationary workplace, which is under the control of the employer, the conclusion of an employment contract with a remote worker does not lead to the formation of a stationary workplace, which means that the employing company does not have a separate division, since it does not the requirements of clause 2 of article 11 of the Tax Code of the Russian Federation are met.
