Separate units. How to pay taxes? Thematic overview

You always want to expand and multiply a successful profitable business by opening an additional structural division for this. Or, for example, sometimes it is necessary to bring production facilities closer to sources of raw materials, remove “dirty” production from large cities, bring sales points closer to consumers, and reduce costs for resource and property payments. One of the options for achieving these goals and solving the problems facing management is to open an additional office.

The decision to open a new structural unit adds work and questions to the manager (what legal status to give to the structural unit,

how to register, where, what documents are needed) and the accountant (how to keep records, how to submit financial statements, what taxes to pay, what you can get fined for). A newly created structural unit can be given the legal status of a branch, representative office or other separate unit (hereinafter referred to as OP). In our article we will talk specifically about other OPs, for example, a retail outlet.

What is a separate division

The concepts of “branch” and “representative office” are given in Art. 55 Civil Code of the Russian Federation. The concept of a separate unit is specified in Article 11 of the Tax Code of the Russian Federation - “... any territorially separate unit 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. At the same time, a workplace is considered stationary if it is created for a period of more than one month...”

A separate unit is characterized by two characteristics - territorial isolation and the presence of a stationary workplace created for a period of more than a month.

Separate divisions and simplified tax system

Art. 346 of the Tax Code of the Russian Federation (clause 3, paragraph 1) limits the ability to use the “simplified” code for companies that have separate divisions in the form of representative offices and branches. If territorial branches are not registered as branches, a legal entity is not prohibited from being taxed under the simplified system, provided that it has the right to do so in principle.

However, the Federal Tax Service pays close attention to the taxation of separate divisions under the simplified tax system. Disputes often arise between companies and tax authorities when the latter look for signs of a branch or representative office in the documents of a “regular” structural department. To avoid misunderstandings, when opening territorial offices, the “head” should not endow them with property, expanded powers and other attributes of independence.

Experts recommend paying attention to the following points when preparing documents:

• the Charter of a legal entity should not contain any mention of territorial branches;
• in the names of departments it is necessary to avoid the use of the words “branch” and “representative office”;
• there is no need to develop a separate regulation for a remote division; it can work on the basis of an order from the general director of the company;
• It is better not to appoint a manager to a separate office, and if one is necessary, strictly limit his powers.

A separate division requires a power of attorney

A separate division is created with the purpose of performing the functions of the organization (all or part of them) or representing the interests of the organization and protecting them at its location. However, an OP is not an independent legal entity and therefore, in order to enter into any legal relations on behalf of the parent organization, it is necessary that all powers are spelled out not only in the constituent documents and regulations of other OPs, but also in a properly executed power of attorney. For example:

• carrying out transactions and other actions related to the current activities of the division. In this case, you can set restrictions. For example, to provide the right to enter into contracts only of a certain type or contracts whose maximum price is limited, etc.;
• opening bank accounts, performing operations to manage funds in these accounts;
• disposal of property with which the unit is allocated, or certain types of property (for example, with the exception of real estate);
• conclusion and termination on behalf of the organization of employment contracts with persons hired to work in a separate unit;
• the right of first signature of various documents drawn up in a separate division: accounting, financial documents, invoices, reporting, etc.;
• representing the interests of the organization in government bodies;
• the possibility of transferring certain powers to third parties, since the head of a department cannot always independently perform his functions for various reasons (for example, a business trip, illness, etc.).

Unlike branches and representative offices, the emergence of another separate division is not accompanied by changes to the constituent documents of the organization, except for documents that actually confirm the creation of a stationary workplace (for example, a lease agreement and an order to hire a person who will be located there). Moreover, when creating a separate division, it is not necessary to approve the Regulations on this separate division, and you can also do without appointing the head of a separate division, without issuing a power of attorney to him (for example, you just hired several additional ordinary employees who will be located in a remote office). However, in practice, as a rule, an order from the head of a legal entity is still issued (there is definitely no need to hold a general meeting of participants for this). It seems to us that it is most appropriate to issue an order to make changes to the staffing table and organizational structure of the legal entity (if there is one).

How to open a separate division?

The opening of a separate division begins with the head of the parent company making a decision. It does not have to be in writing; there is no such obligation in law. However, in practice, it is better to issue such an order in writing.

, since in it the enterprise will be able to accurately indicate the date of opening of the unit and take further actions on its work (start of operations and employment of employees).

The parent structure must notify the tax authority of the decision to open a division. To do this, fill out form C-09-3-1 indicating the name of the separate division (if any), the address of its location and the date of its opening. The application is signed by the head of the parent company or another authorized person.

Form for notification of the opening of other separate divisions

(which are not representative offices or branches) are sent to the Federal Tax Service inspection at the place of registration of the parent company within 1 month from the date of their opening.
If the application is sent electronically, it must be signed with an enhanced electronic digital signature
.

For failure to comply with the deadline for submitting an application, the enterprise can be fined in the amount of 200 rubles, and the manager - in the amount of 300 to 500 rubles.

If a separate division is organized as a representative office or branch

, then information about it must be
entered into the Unified State Register of Legal Entities
. Within 3 days after opening a unit of this type, a legal entity must:

1. submit an application for state registration of changes made to the Unified State Register of Legal Entities;
2. attach the decision of the owners of the enterprise and the new version of the constituent documents;
3. pay a state fee of 800 rubles (except for cases when documents are submitted through the MFC or a notary).

The tax authority sends a response within 5 working days about the registration of a separate division with the assignment of a checkpoint.

The Federal Tax Service does not have the right to refuse a legal entity to register a separate division

.

If the department has its own current account and pays wages to employees, then it will have to be registered with the Pension Fund and the Social Insurance Fund. To register a separate division with the Pension Fund of the Russian Federation, it is enough to notify the tax authority about vesting the OP with the authority to pay wages to individuals. The Federal Tax Service will independently inform the Pension Fund of this decision. This application must be sent to the tax authority within 1 month from the date the department is vested with such powers.

And to register an individual enterprise with the Social Insurance Fund, the parent enterprise must send an application in the form presented in Appendix No. 1 to Order No. 217 of the Federal Social Insurance Fund of the Russian Federation dated April 22, 2019. The application must be accompanied by a certificate in the bank’s form on opening a current account and a copy of the order granting powers

on the calculation and payment of remuneration to individuals.

The maximum period for submitting a notification to the Social Insurance Fund is 30 calendar days.

For failure to comply with the established deadline, a legal entity will be fined in the amount of 5,000 rubles if the delay is 90 days or 10,000 rubles if the delay is more than 90 days.

Differences between a branch and a separate division

We have reflected the main differences in the table:

Important! The head of the organization must also keep in mind when opening a structural unit the fact that the presence of a branch or representative office prohibits the organization from using the simplified taxation system, which does not apply to other OPs.

How to register a unit with the tax authority

In order to register with the tax authorities at the location of a separate division that is not a branch or representative office, it is necessary to send a message to the tax authority about the creation of a separate division.

IMPORTANT! If the division is a representative office or branch, the inspection carries out registration of the organization at its location independently on the basis of information from the Unified State Register of Legal Entities (clause 3 of Article 84 of the Tax Code of the Russian Federation).

The message is submitted to the inspectorate at the place of registration of the organization (clause 4 of Article 83, subclause 3 of clause 2 of Article 23 of the Tax Code of the Russian Federation). It is submitted in form S-09-3-1, approved by order of the Federal Tax Service of Russia dated 06/09/2011 No. ММВ-7-6/ [email protected] The submission period is 1 month from the date of creation of the unit.

You will find a sample of filling out the message in ConsultantPlus. Get trial access to the system for free and proceed to the example of document preparation.

The methods for submitting a message are as follows:

• in person at the inspection (submitted by the manager or an authorized representative by proxy);
• by mail in a valuable letter with an inventory of the contents;
• via telecommunication channels in electronic form.

Having received the message, within 5 working days the tax authority will carry out registration with subsequent notification of the applicant (paragraph 2, paragraph 2, article 84 of the Tax Code of the Russian Federation) - it is drawn up according to form 1-3-Accounting, approved by order of the Federal Tax Service of Russia dated 08/11/2011 No. YAK-7-6/ [email protected]

It is not required to submit to the Federal Tax Service any documents confirming the creation of a separate division (clause 2.1 of the letter of the Federal Tax Service of Russia dated September 3, 2010 No. MN-37-6 / [email protected] ).

If several separate divisions are created in one municipality, the federal cities of Moscow, St. Petersburg and Sevastopol in territories under the jurisdiction of different tax authorities, you can register at the location of one of the divisions - at the choice of the organization. Information about the choice of tax authority must be indicated in the notification in form 1-6-Accounting, approved by order of the Federal Tax Service of Russia dated August 11, 2011 No. YAK-7-6 / [email protected] , sent to the inspectorate along with the message about the creation of an OP (clause 4 Article 83 of the Tax Code of the Russian Federation).

For an example of filling out a notification, see ConsultantPlus. Trial access to the system can be obtained for free.

You will find step-by-step instructions for opening a separate division here .

The procedure for opening and closing separate divisions

As for registering a separate division, it is much simpler than for branches and representative offices (we discussed the registration of branches in the article “Registration of an LLC branch”).

So, registration of a separate division:

• easier! There is no requirement to formalize the corresponding decision of the founder;
• there is no need to enter information about a separate division into the constituent documents and into the Unified State Register of Legal Entities.

It is enough just to register for tax purposes according to the rules of Art. 83 Tax Code of the Russian Federation.

Procedure for opening (registration) of a separate division

We remind you that we are talking about a structural division separate from the main company.

4.1. We issue an order to open a unit . On the opening of a division, the director of the Company issues a corresponding order (see completed example below) and issues a power of attorney to the head of the OP.

Order No.___ on the creation of a separate division

"___"___________2018 _______________________

Due to the development of the company and the need to expand its structure

I ORDER: 1. To create from 07/01/2018, without changing the staffing table, a separate division in the marketing and sales department, located at the address: 214000, Smolensk, st. Sovetskaya, 1, office U1 (hereinafter referred to as OP-SML).

2. The created separate division of OP-LSU is not a legal entity, branch, representative office, does not have an independent balance sheet, and does not have a current or other bank account. Accounting, payment and submission of reports on taxes and fees are carried out by the parent organization - Primer LLC, centrally, at its location.

3. The Company performs the following functions for managing the Separate Division:

• determines the main directions of its activities, approves plans and reports on their implementation;
• carries out inspections of the financial and economic activities of the Separate Division;
• appoints and dismisses the Manager on the grounds provided by law;
• determines the structure of the Separate Division;
• makes a decision to terminate the activities of the Separate Division.

4. The management of the activities of a separate division of OP-LSU is carried out by a Manager appointed by the director of the Company. The head of the Separate Division of OP-SML acts on the basis of a power of attorney issued and signed by the director of the Company.

5. Head of the Separate Division:

• has the right to conclude on behalf of the Company contracts for the sale of goods, works, services produced by the Company in the amount of up to 300,000 (three hundred thousand) rubles, while splitting contracts is not allowed;
• acts by proxy on behalf of the company within the powers determined by the power of attorney issued to him;
• carries out operational management of the activities of the Separate Division in accordance with the plans approved by the Company;
• signs primary accounting documents and invoices issued by the LSU OP (the right of first signature on documents);
• signs and submits accounting, tax, statistical reporting, reporting to extra-budgetary funds of the LSU OP;
• represents the interests of the Company in the person of the Separate Division in relations with government bodies, local governments, extra-budgetary funds, tax authorities, Rosstat bodies, banks, insurance companies, all institutions and organizations regardless of their form of ownership, citizens of the Russian Federation and beyond abroad in connection with the activities of the LSU OP;
• within the limits of available powers, issues orders and instructions, gives instructions that are mandatory for all employees of the Separate Division;

6. Responsibility. For obligations arising as a result of the economic activities of a separate division, the Company bears unlimited liability with all its property, acts as a plaintiff and defendant in court, arbitration (arbitration court). Claim work is carried out by the Company.

7. Make changes to the organizational structure, familiarize employees with this order as it relates to them.

8. In its work, the created separate division shall be guided by the Charter of Primer LLC, this order and the instructions of the director of the company.

4.2. We notify the tax office about the opening of a division .

A notification is filled out in form No. S-09-3-1, which is submitted to the Federal Tax Service at the location of the parent company. The Federal Tax Service at the location of the parent company forwards the information to the Federal Tax Service at the location of the OP. After receiving this message, the tax office at the location of the OP must register it within 5 (five) days. If it is necessary to change information about the OP (for example, a change of legal address), the company must submit a message to “its” Federal Tax Service Inspectorate. If a company opens several separate divisions in one municipality, then a notification about the selection of an inspectorate to register several separate divisions will also be added to the package of documents for registration of an OP. It must be submitted to the inspectorate in which all OPs will be registered within a month from the date of their creation.

Procedure for closing (liquidating) a separate division

4.3 We issue an order to liquidate a separate division (completed example below).

Order No.___ on the liquidation of a separate division

"___"___________2018 _______________________

Due to failure to meet planned targets

I ORDER: 1. To liquidate from 01.11.2018 a separate division located at the address: 214000, Smolensk, st. Sovetskaya, 1, office U1 (hereinafter referred to as OP-SML).

2. Head of the sales department I.I. Ivanov develop and approve the liquidation procedure for OP-LSU, organize the liquidation process: rent, utilities, transfer of debt, dismissal of employees, removal of property. 3. Chief accountant of Primer LLC Semenova S.S. conduct a complete inventory of OP-LSU, submit accounting and tax reports, make all payments to employees, deregister a separate division. 4. I entrust control over the implementation of the order to the head of the legal department, P.P. Petrov.

4.4. We inform employees about dismissal due to staff reduction or in connection with the liquidation of the organization (Article 81 of the Labor Code of the Russian Federation). The second option is acceptable only if the division is located in an area different from the location of the parent organization and other branches of the company. Otherwise, the employer will have to formalize a layoff. Any employee can be fired due to liquidation, even a pregnant woman. When reducing staff, the employer agrees not only to provide the employee with the guarantees of Art. 180 of the Labor Code of the Russian Federation, but also to comply with the rules of Art. 179 of the Labor Code of the Russian Federation on preferential retention at work.

4.5 We notify the Federal Tax Service about the liquidation of the division. We submit a message in form No. S-09-3-2 to the inspectorate at the location of the company’s head office within 3 (three) working days from the date of termination of activity through another regular separate division. The company will be deregistered at the location of other separate divisions - within 10 (ten) working days from the date of receipt by the inspectorate of the notice of termination of activities.

Reporting of a separate division in 2021

Legal entities that have an OP and apply the simplified tax system calculate the tax base and the amount of tax for the organization as a whole, taking into account all income and expenses. But tax payment is made to the tax authority at the location of the main office, regardless of where the division is located.

When it is opened, a legal entity using the simplified tax system becomes a tax agent for the payment of personal income tax, not only in its main office, but also in its division. Reporting and payment of this tax are made at the place of registration of the OP. If an organization has several OPs, then reporting and tax payment must be made at the place of registration of each of them, since Chapter 23 of the Tax Code of the Russian Federation does not give tax agents the right to independently choose a unit for calculating and paying taxes. The same statement is contained in the letter of the Ministry of Finance No. 03-04-06/77778 dated December 23, 2016.

Like the payment of taxes and the provision of reporting, a separate division is carried out at its location. It is impossible to combine reports, even if the EP is registered with the same inspection (see letter of the Federal Tax Service No. GD-4-11/2828 dated February 14, 2018).

IMPORTANT!

This rule is valid until January 1, 2021. From this date, Federal Law No. 325-FZ of September 29, 2019 comes into force, which changes the procedure for payment and reporting of personal income tax. The document allows organizations with private enterprises that are located on the territory of one municipality to choose one Federal Tax Service Inspectorate, where they will pay and report on forms 2-NDFL and 6-NDFL during the year.

So that tax authorities are aware of the decision of the parent organization and are not suspected of tax evasion, the legal entity notifies each of the Federal Tax Service Inspectors, where the OP is registered, about which inspectorate the data will be transferred to next year. It is allowed to change the Federal Tax Service once a year, notifying about decisions made before January 1 of the following year.

If during the calendar year a legal entity opens another separate branch or representative office, the OP will be able to pay and report personal income tax either to the Federal Tax Service Inspectorate selected by the head office or to the inspectorate at its location.

Accounting in a separate division

5.1. There are two ways of maintaining accounting in organizations with separate divisions - centralized and decentralized.

In the first method, the parent organization keeps records of all transactions. To do this, each OP transfers to it all primary documents, both received from counterparties and generated by its employees. Based on these documents, the accounting department of the parent organization reflects the data in centralized accounting.

In the second method, OPs maintain accounting records independently. The parent organization reflects in its accounting only the financial and economic transactions directly carried out by it. In this case, the financial statements as a whole for the legal entity are compiled by summing up the indicators of the accounting registers of the parent organization and the OP.

5.2. The procedure for accounting for business transactions depends on whether the OP is allocated to a separate balance sheet or not. In the first case, accounting is carried out decentralized, in the second - centralized.

OP is not allocated to a separate balance sheet

The rules for document flow (composition, terms of transfer, responsible persons) between the parent organization and the OP are approved in the accounting policy. Within the time limits established by the accounting policy, the OP transfers to the parent organization the primary accounting documents, on the basis of which accounting entries are made in the accounting of the parent organization. The transfer of primary documents is carried out according to a special independently developed and approved register. Accounting statements for such OP are not prepared separately.

OP is allocated to a separate balance

The OP maintains accounting records independently on a separate balance sheet, but the obligation remains to apply the accounting methods reflected in the accounting policies of the parent organization. A separate balance sheet of an OP is a list of indicators with the help of which its property and financial position is reflected for the preparation of financial statements of the organization as a whole.

Note that the document flow schedule between the parent organization and the EP allocated to a separate balance sheet, the working chart of accounts, as well as document forms developed by the organization independently are approved by the accounting policy.

The exchange of information between the parent organization and the OP occurs on the basis of the “advice” document. There is no unified advice form; the organization develops it independently and records it in its accounting policies. An advice note is drawn up for those cases when the parent organization does not participate in the operations carried out by the enterprise, and vice versa. Copies of primary documents confirming the operation are attached to each advice note. The financial statements of the organization as a whole must include indicators of the activities of the EP (including those allocated to separate balance sheets).

5.3 Features of taxation in EP

In the manner provided for in Art. 19 of the Tax Code of the Russian Federation, branches and other separate divisions of Russian organizations perform the duties of these organizations to pay taxes and fees at the location of these branches and other separate divisions. Let's look at the features of each tax

When creating a separate division, it is necessary to remember that the parent company is responsible for their activities. If a company is late in submitting an application to register a unit with the inspectorate, it will be charged a fine of 10,000 rubles. (Article 116 of the Tax Code). In this case, not only the organization itself, but also its leaders - the director and chief accountant - may suffer. For late submission of an application for registration with the tax inspectorate, officials may be punished with a fine of 500 to 1000 rubles. At the same time, conducting activities without tax registration is punishable by a fine of 10% of the income received by the organization during such activity, but not less than 20,000 rubles. or 20% (if the unit has been operating without registration for more than 90 days), but not less than 40,000.

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Payment of taxes by separate divisions

The taxation procedure for structural divisions depends on their legal status, the type of taxes and fees levied, and whether the department has its own balance sheet or bank account.

VAT

Payers of value added tax are legal entities. Since the divisions are not recognized as independent entities, they do not have VAT obligations.

The parent organization submits a VAT return to the Federal Tax Service inspectorate at the place of registration of the legal entity itself. Calculation and payment of tax is made in the total amount without distribution to branches.

Excise taxes

Excise taxes are payable at the location of units engaged in the production and sale of excisable goods and services. For taxpayer organizations, this means that they need to submit excise tax returns for each branch separately - to their territorial bodies of the Federal Tax Service.

Tax reporting on excise taxes is provided upon the sale or transfer of excisable products. If the unit did not have such operations during the reporting period, there is no need to submit a declaration for it.

Personal income tax

A legal entity as an employer is a tax agent for income taxation of its employees - individuals. The company is required to submit information about personnel income to “its” inspectorate. At the same time, it must transfer the amount of taxes withheld from employees at the place of their registration as taxpayers.

To do this, when opening separate divisions, an organization registers with the tax authorities at the location of each of them. Personal income tax is paid according to the details of the relevant inspection, and data on the income of the personnel of a particular department is also duplicated there.

Income tax

The procedure for paying income tax by legal entities with remote divisions is regulated by Article 288 of the Tax Code of the Russian Federation. Regarding the tax going to the federal budget, the transfer of advance payments and debts at the end of the tax period is made by the “head” of the company in the total amount, without breaking down by branches.

Calculations for income tax with regional budgets occur taking into account the location of all structural divisions and the parent organization. From the total tax base of the company, it is necessary to allocate the share attributable to each branch or representative office. Then advance payments are calculated and transferred to the relevant Federal Tax Service - local and central. Income tax returns are submitted in a similar way - at the place of registration of the legal entity and to the territorial authorities that keep records of regional representative offices.

Property tax

The organization's property tax is paid separately at the location of the head office and branches, if the divisions have their own balance sheet and assets accepted for it.

Payment for taxable property registered with a central organization is calculated and transferred in advance payments to the Federal Tax Service where the legal entity is registered. Tax on property belonging to subdivisions is paid in the same way. For each branch, the tax base is calculated separately, which is multiplied by the tax rate established in a particular subject of the federation. The amount of property tax goes to the regional budget.

Transport tax

The procedure for paying transport tax depends on the place of state registration of vehicles. If the car is assigned to the head office, payments for it will be made to the central Federal Tax Service. In this case, the machine may actually be located in a remote department. Transport transferred to the branch using papers is registered locally and is taxed there.

This rule applies only to the permanent registration of the vehicle. If a temporary registration is issued, in order to avoid double taxation, tax is not charged at the place of temporary location of the car.

Land tax

The payment of land tax by separate divisions is not regulated by the Tax Code. In general cases, the organization that owns the object of land taxation at the location of the branch submits a declaration and makes payment for the site to the local budget.

If the unit has its own account, the amount of land tax calculated for the tax period is transferred from it.

VAT in the presence of separate divisions

VAT is a federal tax, credited only to the federal budget and only at the location of the parent organization. Accordingly, the VAT return is drawn up for the organization as a whole and submitted to the tax authority at its location.

If there are separate divisions within the organization that independently carry out the sale (purchase) of goods (works, services), it is necessary:

— establish the procedure for maintaining a purchase book and a sales book;

— determine the persons who have the right to sign invoices;

— develop a procedure for maintaining separate accounting in the presence of transactions that are not subject to taxation;

— establish rules for document flow and exchange of information regarding VAT.

Purchase book and sales book

The rules for maintaining logs of received and issued invoices, purchase books and sales books for VAT calculations were approved by Decree of the Government of the Russian Federation dated December 2, 2000 No. 914 (hereinafter referred to as the Rules).

The latest changes to the Rules were made by Decree of the Government of the Russian Federation dated May 26, 2009 No. 451. Amendments made to Chapter 21 of the Tax Code of the Russian Federation by federal laws adopted in 2010 are not taken into account.

The rules do not establish the procedure for maintaining a purchase book and a sales book. The source of information on this issue is letters from the Ministry of Finance of Russia and the Federal Tax Service of Russia.

In a letter dated May 21, 2001 No. VG-6-03/404, the Ministry of Taxes of Russia explains that logs of received and issued invoices, purchase books and sales books are maintained by structural units in the form of sections of unified accounting journals, unified books of purchases and sales of the organization.

During the reporting (tax) period, the specified sections of the purchase books and sales books are presented as separate divisions for the preparation of unified books of purchases and sales of the taxpayer and the preparation of VAT returns.

The procedure for preparing invoices, purchase and sales books must be reflected in the organization's accounting policies for tax purposes.

Invoices for the sale (purchase) of goods (works, services) through separate divisions

Separate divisions of organizations are not VAT payers. Therefore, in the case when goods (work, services) are sold by an organization through its divisions, invoices for shipped goods (work, services) can be issued by these divisions to customers only on behalf of the organization.

Invoices are numbered in ascending order for the organization as a whole. It is possible to both reserve numbers as they are selected, and assign composite numbers with the index of a separate unit (letter of the Ministry of Taxes and Taxes of Russia dated May 21, 2001 No. VG-6-03/404).

At the same time, when filling out invoices for goods (work, services) sold by divisions of the specified organization, in line 2b “TIN/KPP of the seller” the KPP of the corresponding division is indicated.

Accordingly, when purchasing goods (work, services) by divisions of an organization, line 6b “TIN/KPP of the buyer” indicates the KPP of the corresponding division.

In lines 3 “Consignor and his address” and 4 “Consignee and his address” of the invoice, data is indicated in accordance with the Rules (letter of the Ministry of Finance of Russia dated January 14, 2010 No. 03-07-09/01).

The Federal Tax Service of Russia for Moscow explains that according to the Rules, line 3 “Consignor and his address” indicates the full or abbreviated name of the consignor in accordance with the constituent documents (letter dated May 19, 2009 No. 16-15/049391).

If the seller and the shipper are the same person, then “he” is written in this line.

If the seller and the consignor are different persons, then the postal address of the consignor is indicated.

The letter of the Ministry of Finance of Russia dated July 21, 2008 No. 03-07-09/21 states that invoices cannot serve as a basis for accepting VAT amounts presented to the buyer by the seller for deduction or reimbursement if in line 4 “The consignee and his address” the words “he” are indicated.

In this case, the names of the shipper and consignee must comply with the terms of the contract for the supply of goods.

So, if an organization is indicated as a consignee in the contract, its name and postal address must be entered in the line. If, according to the terms of the contract, the recipient of the cargo is a structural unit, the line indicates its name and postal address, that is, the address of the unit (warehouse) where the cargo is delivered. The procedure for filling out invoices when an organization sells goods (works, services) through its separate divisions is also stated in letters of the Ministry of Finance of Russia dated September 17, 2009 No. 03-07-09/47, dated October 22, 2008 No. 03-07-09/33 and dated December 8, 2009 No. 03-07-11/310.

Invoices are drawn up (including by separate divisions) in cases where:

— the operation performed by the organization is not subject to VAT (Article 149 of the Tax Code of the Russian Federation);

— the organization is exempt from taxpayer obligations under Art. 145 Tax Code of the Russian Federation.

In this case, the invoice is filled out in the general manner, but with o (Clause 5 of Article 168 of the Tax Code of the Russian Federation).

If the tax is highlighted in the invoice, then in accordance with clause 5 of Art. 173 of the Tax Code of the Russian Federation, it must be paid to the budget (letters of the Ministry of Finance of Russia dated March 17, 2010 No. 03-07-11/66, Federal Tax Service of Russia for Moscow dated November 17, 2009 No. 16-15/120314, resolutions of the Federal Antimonopoly Service of the Volga Region dated December 14, 2006 No. A65-24733/05-SA2-22, North Caucasus District dated April 17, 2007 No. F08-4799/2006-2035A and Northwestern District dated September 15, 2005 No. A66-13542/2004).

Invoices for intermediary transactions

The Federal Tax Service of Russia issued a letter dated 02/04/2010 No. ШС-22-3/ [email protected] “On the preparation of invoices and the application of tax deductions for intermediary transactions.” It explains in detail the procedure for drawing up invoices when receiving (paying) advances with the participation of an intermediary, as well as when selling (purchasing) goods (works, services), which should also be applied by separate divisions of the organization.

Particular attention should be paid to sub. “A”, paragraph 2 of the said letter, which explains the procedure for drawing up an invoice by an intermediary to the principal (principal) for goods (work, services) purchased for him:

— line 1 indicates the date of issue of the invoice, corresponding to the date of issue of the invoice issued by the seller to the commission agent (agent). The serial number of the invoice is indicated by the commission agent (agent) in chronological order;

— lines 2, 2a and 2b indicate the name and location of the seller in accordance with the constituent documents, identification number and reason code for registering the seller;

— lines 3 and 4 indicate data in accordance with the Rules;

— line 5 is filled in in case of receipt of payment, partial payment for the upcoming delivery of goods (work, services), or transfer of property rights. In this case, line 5 indicates the details (number and date of preparation) of the payment document or cash receipt (when paying using payment documents or cash receipts to which the invoice is attached), corresponding to the details specified in the seller’s invoice (that is, a payment document or cash receipt confirming the transfer of payment to the seller by the commission agent (agent), as well as details (number and date of preparation) of the payment document or cash receipt confirming the transfer by the principal (principal) of the advance payment to the commission agent (agent). When the seller receives payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights using a non-cash form of payment, a dash is entered on this line of the invoice drawn up by the commission agent (agent);

— lines 6, 6a and 6b indicate information about the buyer (principal, principal) in accordance with the Rules;

— in columns 1-11, the commission agent (agent) shall indicate data corresponding to the data from the invoices issued by the seller to the commission agent (agent).

The specified invoice is signed by a commission agent (agent), namely the head and chief accountant of the organization or other persons authorized to do so by an order (other administrative document) for the organization or a power of attorney on behalf of the organization.

Please note that the intermediary transfers to the invoice for the principal (principal) all the data from the invoice of the real supplier (except for the “Buyer” detail). But the intermediary signs the invoice. The buyer in the intermediary invoice will be the committing organization (principal). The consignee may be a separate division if this is provided for in the supply agreement.

When selling through an intermediary, for the principal (principal), the moment of determining the tax base is one of the earlier dates: either the date the intermediary drew up the first primary document addressed to the buyer or carrier, or the date of payment to the intermediary.

Therefore, when the principal (principal) issues an invoice for goods sold, he indicates the date corresponding to the date of the invoice issued by the intermediary to the buyer.

This rule must also be followed when implemented through separate divisions.

If the organization is a VAT tax agent

In accordance with Chapter 21 of the Tax Code of the Russian Federation, an organization can be not only a VAT payer, but also a tax agent for this tax.

Article 161 of the Tax Code of the Russian Federation provides for several cases when VAT from a taxpayer must be withheld by a tax agent (buyer, lessee, customer and other persons).

Tax agents in accordance with clause 2 of Art. 161 of the Tax Code of the Russian Federation are persons who are not VAT payers, who apply special taxation regimes in accordance with Chapters 26.1-26.3 of the Tax Code of the Russian Federation and have received exemption from taxpayer obligations in accordance with Art. 145 Tax Code of the Russian Federation.

When selling goods (work, services), the place of sale of which is the territory of the Russian Federation, by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is determined as the amount of income from the sale of these goods (work, services), taking into account tax (clause 1 of article 161 of the Tax Code of the Russian Federation).

The tax base is determined separately for each transaction involving the sale of goods (work, services) on the territory of the Russian Federation.

The tax agent is also required to withhold VAT when transferring advance payments to a foreign legal entity.

When federal property, property of constituent entities of the Russian Federation and municipal property are provided on the territory of the Russian Federation by state authorities and management bodies and local self-government bodies, the tax base is determined as the amount of rent including tax (clause 3 of Article 161 of the Tax Code of the Russian Federation).

In this case, the tax base is determined by the tax agent separately for each leased property. In this case, the tax agents are the tenants of the specified property.

These persons are required to calculate, withhold from income paid to the landlord, and pay the appropriate amount of tax to the budget.

If an organization purchases services from a foreign legal entity through a separate division or leases property from a government authority through a separate division, the obligation to withhold VAT on the amount of income paid can be assigned to the separate division. The most common case is renting premises from a government agency at the appropriate level to house a separate unit. When transferring rent from the account of a separate division in advance or after a certain period of use of the premises, the separate division must withhold VAT at the calculated rate of 18/118%.

The Federal Tax Service issued a letter dated August 12, 2009 No. ШС-22-3/634 “On the procedure for drawing up invoices by tax agents.”

The letter states that the tax agent draws up an invoice when calculating the amount of tax payable to the budget. The tax amount is calculated by the tax agent specified in clauses 2 and 3 of Art. 161 of the Tax Code of the Russian Federation, when paying for goods (work, services), that is, either at the time of their advance payment (in full or with partial payment), or at the time of payment for registered goods (work, services).

The procedure for filling out invoices by a tax agent is established by Appendix No. 1 to the Rules and is repeated in the specified letter.

The tax agent registers invoices at the moment when he has the obligation to calculate the tax base (that is, at the time of prepayment or at the time of subsequent payment).

Amounts of tax paid to the budget by tax agents in the prescribed manner are subject to deduction in accordance with clause 3 of Art. 171 of the Tax Code of the Russian Federation in the presence of an invoice drawn up for advance payment of goods (work, services), only after the goods (work, services) have been accepted for registration and in the presence of relevant primary documents (confirming the fact of their acceptance for registration).

In other words, tax agents are required to calculate and pay VAT on prepayment amounts, but no deduction is provided to tax agents on prepayment amounts.

Separate accounting

If there are operations specified in clause 2 of Art. 170 of the Tax Code of the Russian Federation, the organization must ensure separate accounting of such transactions.

The methodology for maintaining separate accounting is developed independently and approved as part of the accounting policy. If separate divisions are allocated to a separate balance sheet, sell and purchase goods (work, services), then they can maintain part of separate accounting for their operations, namely:

— accounting for revenue from the sale of taxable and non-taxable transactions;

— accounting for direct expenses and VAT amounts presented by suppliers for goods, works, services used to carry out VAT-taxable and non-VAT-taxable transactions on different sub-accounts;

— accounting for the amounts of VAT presented by suppliers on goods, works, services used to carry out both taxable and non-VATable transactions in a separate subaccount of account 19. The specified VAT is transferred at the end of the tax period to the parent organization for distribution throughout the organization as a whole based on proportion determined in accordance with paragraph 4 of Art. 170 Tax Code of the Russian Federation.

Read more about the calculation and payment of various taxes by organizations with separate divisions in the journal Economic and Legal Bulletin, 2011, No. 3.