How to create a simple separate division - not a branch or a representative office

What is a separate division

Companies that have decided to expand their commercial interests may need to conduct activities through new divisions - branches or representative offices (according to Article 55 of the Civil Code of the Russian Federation), for example, in another region of our country.
They will pursue the same goals and perform the same tasks as the parent organization. Also, separate divisions are assigned all the functions of the main company or part of them. This is the position of the Civil Code of the Russian Federation. The position of tax legislation differs from civil law. The Tax Code of the Russian Federation distinguishes both branches and representative offices, and simply separate divisions. According to paragraph 1 of Art. 83 of the Tax Code of the Russian Federation, the company is obliged to register each new division at its location. The concept of a separate division can be found in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation. This is a branch of the company, the actual location of which is different from the main legal address. A separate division can be formed in another region, city or district of an urban district, that is, in another municipal entity. One of the main conditions for recognizing a unit as separate is the presence of at least one stationary workplace in it. In this case, the place must be organized for a period of more than 1 month (Article 11 of the Tax Code of the Russian Federation).

As an example, we can cite such structures that have divisions located in different regions of the country and different districts of the same city, such as:

retail trade networks;
banking organizations.

Separate divisions can be different and created for various reasons. At the same time, registration under the Civil Code of the Russian Federation and the Tax Code of the Russian Federation is different. According to the Civil Code of the Russian Federation, only branches or representative offices are registered, and according to the Tax Code of the Russian Federation - any separate division (at the location of the property, at the place of installation of the cash register). For the tax inspectorate, a notification that, for example, a cash register or a real estate property is located on its territory is sufficient. This is necessary to control taxation. If your company decides to register a separate division under the Civil Code of the Russian Federation (as a branch or representative office), get ready for full-scale registration in accordance with all the rules. And here you will need detailed step-by-step instructions for registering a separate division in 2020-2021.

To find out whether it is possible for a “simplified” to have a separate division, read the article “Opening a separate division under the simplified tax system .

When a unit is considered created

As you can see, legal preparation alone for opening a division can take a lot of time. But you still need to find and equip premises, select personnel, etc. At what point can we say that the unit has been created?

Unfortunately, neither the Tax Code nor the Civil Code provide a direct answer to this question. The wording of Art. The Civil Code of the Russian Federation, which provides definitions of a branch and representative office of a legal entity, allows us to conclude that they are recognized as created from the moment they begin to perform the relevant functions (including representing the interests of the company and protecting them). That is, we are talking about a really operating unit, and not about one created only “on paper.”

The situation with other separate divisions is somewhat more complicated. The Civil Code does not regulate this situation at all. The Tax Code, citing the characteristics of a separate division, operates with the concept of creating a stationary workplace (Clause 2 of Article of the Tax Code of the Russian Federation). Since the Tax Code of the Russian Federation does not contain its own definition of the term “workplace,” then by virtue of clause 1 of Art. The Tax Code of the Russian Federation applies this term in the meaning in which it is used in labor legislation. According to Art. 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.

Thus, formally for the purposes of the Tax Code of the Russian Federation, the determining factor is not the actual presence of employees, but the creation of stationary jobs. That is, places where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Accordingly, if at the location of the premises, located at an address different from the address of the organization itself, stationary workplaces are organized (for example, a cash register has been installed), then, based on the provisions of Art. According to the Tax Code of the Russian Federation, an organization at this address creates a separate division, regardless of the actual location of employees at these workplaces.

At the same time, it is worth taking into account the position of the Russian Ministry of Finance. They believe that a separate division for the purposes of the Tax Code of the Russian Federation cannot be considered formed if the organization has not begun to conduct activities at the location of this division, i.e. until at least one employee has actually begun to perform his work duties there. At the same time, the form of organization of work, the period of stay of a specific employee at a stationary workplace created by the organization have no legal significance (see letters of the Ministry of Finance of Russia dated 05.05.17 No. 03-02-07/1/27605 and dated 02.19.16 No. 03-02- 07/1/9377).

We will assume that the same rules apply to a simple separate division as to a branch with a representative office. That is, a simple OP is recognized as created only from the moment when the organization actually began to carry out activities through it. To avoid controversial issues, it is better to record the opening date of the unit in an internal document. For example, issue an order to start work through the relevant department, clearly indicating the date. This advice is also relevant for branches with representative offices.

Package of documents for registration

So, the company decided to create a separate division. Before registering it, she will need to prepare a package of certain documents.

At this stage, the organization's actions are as follows:

The decision to create a separate division is made by the enterprise management body - the board of directors, the supervisory board, the meeting of shareholders.
Based on this decision of the governing body, presented in the form of a protocol, an order is issued to create a unit.

The order must reflect:

name of the new division;
the basis for its creation, for example, the minutes of the general meeting of shareholders (number and date);
location of the unit;
a manager who is appointed and removed from office by a decision of the management body of the parent enterprise, for example, by a decision of the supervisory board or a general meeting of shareholders;
within what time the unit must be registered.

An example of an order was prepared by ConsultantPlus experts. If you do not have access to the K+ system, get a trial online access for free.

The document is signed by the head of the parent company.

Based on the order, an internal local act is developed - the Regulations on a separate division (branch or representative office). It establishes:

the degree of legal capacity and powers of the new unit;
activities;
functions;
management structure;
other aspects that relate to the activities and actions of the unit.

Also, the order is the basis for amending the constituent documents if we are talking about a branch or representative office. They can be formatted as:

a separate document that is attached to the current charter or constituent agreement, for example, amendment No. 1;
new edition of the constituent document.

A sample compiled by ConsultantPlus experts will help you prepare the Regulations on a separate division. You can download it by getting free access to the K+ system.

Once the necessary documentation has been collected, we move on to the next stage.

The decision to create a division

The law does not mention which body should make the decision. In normal cases, this decision is made by the director. But the founders of the company can specify in the charter the name of the body that will make the corresponding decision. For example, such a decision may be made at a general meeting of founders.

Example

Decisions on the creation of a division can be made at a meeting of the founders of the company.

It should contain the following information:

Name, type and location;
Functions that will be performed;
Structure;
Personal data of the person in charge or the head of the department;
Opening date. Sometimes tax authorities may make a formalized decision to create a division prior to the opening date. Indicating the opening date can help if disputes arise with the Internal Revenue Service due to filing failures.

But you can use another option. Information may be reflected in a separate internal document. This could be a regulation or another document. Adoption must be carried out at a general meeting of founders or shareholders, depending on the legal form of the organization.

You can see sample documents for creating a separate division in the article - Sample documents for opening separate divisions

Advice

When creating, it is recommended to clarify that this unit is not considered a branch or representative office. Such a mention will help avoid misunderstandings on the part of counterparties or controlling structures.

Registration of a separate division in 2021 - 2021: step-by-step instructions

A legal entity is obligated to report the creation of a separate division to the tax office within a month after the decision is made, for example, after the date of the minutes of the general meeting of shareholders. According to paragraph 3 of Art. 83 of the Tax Code of the Russian Federation, a new division of an enterprise must undergo the procedure of tax registration and inclusion in the Unified State Register of Legal Entities.

See also: “The Supreme Court again cancels large fines for failure to register a unit .

Registration of a separate division is carried out by the tax authorities. To do this, the enterprise must contact the tax office that will have jurisdiction over the territorial unit (municipal entity).

To register a branch or representative office, you must submit documents according to the following list to the tax authorities:

a copy of the decision of the governing body to create a separate division;
a copy of the approved regulations on the separate division;
a copy of the constituent documentation and its amendments (as a separate document or as a new edition);
a copy of the state registration certificate of the main enterprise;
a copy of the orders on the appointment of the head and chief accountant of the new division;
a copy of the payment order or bank statement confirming payment of the state registration fee, certified by the seal and signature of the head of the credit institution;

On our website you can use a payment order for payment of state duty “Payment order for payment of state duty - sample” .

extract from the Unified State Register of Legal Entities for the parent company;
application for registration of changes in forms P13001 (for changes in the charter) and P13002 (for changes in the Unified State Register of Legal Entities).

All copies must be notarized. If a separate division will conduct its activities in rented premises, then it is necessary to have a copy of the lease agreement for the space. Documents can also be submitted electronically via appropriate communication channels in the form of scans. In this case, they will be certified with an electronic digital signature.

Registration is carried out by the tax authority within 5 days from the date of actual submission of the package of documents or receipt on the server through electronic document management. The corresponding notification serves as a document confirming the registration of the unit.

When registering, a separate unit is not assigned a TIN, but only a reason for registration code (RPC). In its documentation, the division will use the TIN of the parent company. However, it is not an independent legal entity.

ATTENTION! The checkpoint of the division will differ from the code of the parent organization by the 5th and 6th digits: 43 - branch, 44 - representative office, 45 - other OP. How to find out the checkpoint of a separate unit? This information is registered in the Unified State Register of Legal Entities only if the OP is registered as a branch or representative office. There is no information about other OPs in the Unified State Register of Legal Entities. Therefore, you can find out the checkpoint of the unit only in the certificate of registration of the OP.

For other separate divisions, a special package of documents is not required. In this case, it is enough to submit a message to the tax authority in form C-09-3-1. Until December 25, 2020, the message is submitted in the form approved. by order of the Federal Tax Service dated 06/09/2011 No. ММВ [email protected] From 12/25/2020, message C-09-3-1 must be filled out on a new form, approved. by order of the Federal Tax Service dated 09/04/2020 No. ED [email protected]

Let's look at the procedure for filling out the document in more detail.

Action plan for creating a separate unit

Determine that the organization is creating a separate division that is not a branch or representative office (since they have a different registration procedure).
Make sure that the created workplace is stationary, that is, created for a period of more than a month, the employee is present at it constantly, and this is related to the performance of his official duties. If the employee is remote, there is no need to create a separate unit.
Within a month after creating a permanent workplace, inform the tax office where the LLC is registered about the creation of a separate division using form No. S-09-3-1.
Register with the social insurance fund within 30 days.
If necessary, report a change in the address or name of a separate division to the Federal Tax Service at the place of registration of the division within three days using Form No. S-09-3-1.

Application for registration of another separate division in form S-09-3-1

The application itself is a one-page form. The company should not have any difficulties filling it out.

Accounting in branches and representative offices

A separate division carries out activities in accordance with the goals and objectives of the parent company. Functions, types of activities, level of legal capacity and powers are determined by the parent organization and are enshrined in the regulations on the separate division. Including accounting, accounting is possible in two options.

Option 1: the division does not have its own balance sheet.

In this case, the branch does not have its own accounting department and current account. All settlements with contractors, including payroll personnel, are carried out by the head office accounting department. In this case, the division has the right to issue, for example, shipping documents, but they will be accepted for accounting in the head accounting department.

Option 2: the division is on an independent balance sheet.

This option involves creating an accounting service and maintaining records within the department. It has a current account with a credit institution and can carry out settlements with counterparties independently. Data from the financial statements of the division are taken into account in the general summary of the enterprise. A separate division carries out accounting according to the rules of the accounting policy of the parent company.

You will learn how to correctly draw up an accounting policy for your company from our material “How to draw up an organization’s accounting policy?” .

Closing a separate division in 2021 - 2021: step-by-step instructions

The procedure for closing a branch or representative office differs from closing another separate division. According to sub. 3.1 clause 2 art. 23 of the Tax Code of the Russian Federation, an enterprise is obliged to notify the tax authority of the closure of a branch, representative office or other separate division within 3 days from the date of termination of activity.

The procedure for closing a branch and representative office is similar to the procedure for opening it. Such separate divisions are removed from tax registration with a full package of documents: a certified copy of the administrative document on the closure of the division (for example, minutes of a meeting of the board of directors), changes to the charter and the Unified State Register of Legal Entities, an application in form P13002.

To close another separate division, it is enough to submit an application to the tax authority in form C-09-3-2. Until December 25, 2020, the message is submitted in the form approved. by order of the Federal Tax Service dated 06/09/2011 No. ММВ [email protected] From 12/25/2020, message C-09-3-2 must be filled out on a new form, approved. by order of the Federal Tax Service dated 09/04/2020 No. ED [email protected]

The form, valid from December 25, 2020, can be downloaded from the link below:

The application states as before:

TIN and KPP of the parent organization;
full name;
tax authority code;
OGRN of the parent organization;
number of closing units;
Full name of the head of the enterprise, his personal tax identification number;
contact information (phone number, email address);
company seal.

You can see a sample of filling out an application for closing an OP in the K+ system, having received free access to the system.

At the same time, applications for registration and deregistration of a unit are almost identical. The only difference is in the title of the document itself. The application is also drawn up in 2 copies. You can provide the original document and a copy of it, on which a tax inspector will mark acceptance.

If the closed enterprise was responsible for the centralized payment of income tax, then in addition to the above documents, notifications in Forms 1 and 2 should be sent to the Federal Tax Service.

See here for details.

Results

A separate division is not an independent legal entity. The decision to create a new division is made by the enterprise management body. After this, the company must contact the tax authority at the location of the unit and provide the necessary package of documents within a month after the decision is made (for a branch or representative office). To register another separate division under tax legislation, it is enough to notify the tax office in the form of an application.

After registration, the division receives its own checkpoint, and the TIN applies to the parent organization.

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Types of OP

Article 55 of the Civil Code talks about two types of special units:

Representation. This is a separate division of a legal entity that represents and protects its interests.
Branch. This type of EP is intended to carry out the functions of an organization or part thereof, including the functions of representation.

Both of these types of OPs are not recognized as independent legal entities and do not have their own property. They conduct their activities on behalf of the parent organization. It also develops regulations on the branch or representative office and appoints its head. Information about divisions of these types is entered into the Unified State Register of Legal Entities. The difference between these types of OP is in the set of functions - for a branch they are wider.

There are no other types of divisions in the Civil Code, however, the Tax Code contains the concept of “other separate division”. This gives organizations the right to open an OP that is neither a branch nor a representative office.

Read about how separate divisions can pay taxes and submit reports in this article.

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