Situation: what day is considered the date of creation of a separate subdivision. Which is better: a separate division, branch or representative office

Many companies pursuing the goal of expanding their business, in practice, face the problems of choosing the right form of fixing the legal status of an additional office or workshop.

What should you choose - a branch or a representative office? What are the differences between them and how do these forms differ from other separate divisions? Or maybe it's the same thing? This article will help to understand the differences between branches, representative offices, other separate divisions, highlight their main features and help you choose the right form of doing business, not forgetting about the specifics of the company's taxation regime.

First of all, we will make a reservation that the composition of the terminology of civil and tax law is different. In the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation, the Code) there is no definition of the concept of a branch, as well as the concept of a representative office. At the same time, Article 11 of the Tax Code of the Russian Federation determines that the institutions, concepts and terms of the civil and other branches of the legislation of the Russian Federation used in the Code are applied in the sense in which they are used in these branches of legislation, unless otherwise provided by the Code. Therefore, we will use these terms for tax purposes in the sense in which they are used in civil law.

The concepts of "branch" and "representative office" are given in Article 55 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). According to the provisions of this norm, a representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of the legal entity and protects them.

A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office.

Based on the definitions, we can conclude that the main difference between a branch and a representative office is their functional purpose: a representative office only represents the interests of a legal entity in its relations with participants in civil circulation, for example, it performs the functions of negotiating and subsequent conclusion of transactions, as well as protecting the interests of the organization in the judiciary.

The branch also represents the interests of the legal entity, i.e. including acts of representation. However, in addition to this, the branch performs all or part of the functions of a legal entity. In other words, the branch not only negotiates and makes transactions on behalf of the legal entity, but also performs actual actions aimed at fulfilling the concluded agreements, i.e. conducts production, trade or other activities carried out by the legal entity itself. At the same time, a branch can perform all types of activities of the organization or some of them.

Having considered both concepts, we can identify features that are similar for both a branch and a representative office. The first and perhaps the most defining feature is that neither a branch nor a representative office are legal entities, i.e., independent participants in civil circulation, but enter into civil, labor, tax and other legal relations on behalf of the legal entity that created them . In practice, this sign is reflected in the following:

Transactions on behalf of a branch or representative office are concluded by the legal entity itself;

It is also responsible for the obligations arising in connection with their activities;

Branches and representative offices cannot act as plaintiffs and defendants in court, i.e. cannot participate in court proceedings on their own behalf. This is how the Presidium of the Supreme Arbitration Court of the Russian Federation (hereinafter referred to as the Supreme Arbitration Court of the Russian Federation) regulates this issue in the Information Letter dated May 14, 1998 N 34 "On Consideration of Claims Arising from the Activities of Separate Subdivisions of Legal Entities": "... a separate subdivision that is not a legal entity, may only sue on behalf of a legal entity... The statement of claim signed by the head of a separate subdivision must be accompanied by a power of attorney (or a copy thereof) of the legal entity confirming its authority to sign the statement of claim on behalf of the legal entity.

In the absence of such a power of attorney, the statement of claim is returned without consideration on the basis of paragraph 2 of part 1 of Art. 108 APC RF".

A similar conclusion is contained in the Decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 N 41/9 "On Certain Issues Related to the Enactment of Part One of the Tax Code of the Russian Federation." By virtue of paragraph 9 of this Decree, branches and representative offices of Russian legal entities are not considered as participants in tax legal relations and do not have the status of taxpayers, tax agents and other liable persons. Responsibility for failure to fulfill all obligations to pay taxes, fees, penalties and fines shall be borne by the legal entity, which includes the relevant branch (representative office).

Guided by this legal position, the Federal Antimonopoly Service of the Moscow Authority in its Decree of April 15, 2009 No. KA-A40 / 1708-09 noted that branches are not subjects of tax legal relations, therefore, they cannot be held liable for tax liability, since they are liable for actions (inaction) of branches, only a legal entity can be involved.

Territorial isolation, or location outside the location of the organization, is also an important defining feature of both a branch and a representative office. In accordance with paragraphs 2 and 3 of Art. 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration and is indicated in its constituent documents.

With regard to the concept of "location of a legal entity" in modern legal literature, there are different opinions. Some tend to believe that the location of a legal entity is a specific address, i.e. settlement, street, house, office where the permanent executive body of the legal entity is located, or in its absence - another body or person entitled to act on behalf of the legal entity without a power of attorney, information about which is contained in the Unified State Register of Legal Entities (hereinafter - Unified State Register of Legal Entities). In accordance with this assumption, territorial isolation means that if a company's additional office is located in the same locality, on the same street, and even in the same house as the legal entity that created them, but in a different location, they can safely refer to the branch on this basis. or representation.

In accordance with the opposite theory, the location of a legal entity should be considered not a specific postal address contained in the Unified State Register of Legal Entities, but belonging to a certain subject of the Russian Federation (for example, St. Petersburg). Following the logic of this assumption, territorial isolation as a sign of a branch or representative office means that a legal entity can create them only outside its location, i.e. in another subject of the Russian Federation. However, in practice, it can be seen that the tax authorities, guided for the most part by the Tax Code and without delving into the theoretical aspects of civil law, do not restrict taxpayers in the right to create branches and representative offices in the same subject of the Russian Federation where the legal entity itself is located.

The property isolation of branches and representative offices as their next important feature means that, firstly, they have the right to have property allocated by a legal entity to a separate balance sheet, and secondly, they have the right to have a separate current account. At the same time, according to the Letter of the Ministry of Taxes and Taxes of the Russian Federation for Moscow dated June 9, 2004 N 23-10/1/38453, the allocation of a branch or representative office to a separate balance sheet is determined by the constituent documents of the organization, including its charter and regulations on this branch or representative office. However, branches and representative offices do not have the right of ownership, operational management or economic management to this property and funds - the legal entity itself has property and liability rights to them, and the branch or representative office only actually owns and uses them.

Branches and representative offices are organizationally separated from the legal entity that created them. This means that their leaders are appointed by a legal entity and act on the basis of a power of attorney issued to them. The importance of a power of attorney as a document defining the powers of the head of a branch or representative office is stated in paragraph 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/01/1996 N 6/8 "On some issues related to the application of part one of the Civil Code of the Russian Federation", where in particular it states:

"It must be borne in mind that the relevant powers of the head of the branch (representative office) must be certified by a power of attorney and cannot be based only on the instructions contained in the constituent documents of the legal entity, the position on the branch (representative office), etc., or be clear from the situation, in which the head of the branch operates.

When resolving a dispute arising from an agreement signed by the head of a branch (representative office) on behalf of the branch and without reference to the fact that the agreement was concluded on behalf of a legal entity and by its power of attorney, it should be clarified whether the head of the branch (representative office) had at the time of signing the agreement the relevant powers expressed in the regulation on the branch and the power of attorney. Transactions made by the head of a branch (representative office) in the presence of such powers should be considered made on behalf of a legal entity.

It should also be taken into account that the head of a branch (representative office) has the right to delegate the performance of actions for which he is authorized by a power of attorney to another person in compliance with the rules provided for in Article 187 of the Code.

Branches and representative offices act on the basis of a separate document (Regulations), which is an internal document of the organization (i.e. not subject to state registration) and is approved by the body whose competence includes making a decision on the establishment of a branch or representative office. It should be noted that any requirements for the content of the Regulations are not established by law.

Information about branches and representative offices must be reflected in the constituent documents of the legal entity that created them. This is discussed, for example, in paragraph 5 of Art. 5 of the Federal Law "On Limited Liability Companies", paragraph 6 of Art. 5 of the Federal Law "On Joint Stock Companies", paragraph 5 of Art. 5 of the Federal Law "On State and Municipal Unitary Enterprises".

Taxpayers often ask whether it makes sense to include information about a branch or representative office in the new version of the Charter, adopted in accordance with the requirements of Federal Law No. 312-FZ of December 30, 2008. This question was unambiguously answered by the Federal Arbitration Court of the West Siberian District in its decision of December 17, 2009 N F04-7560 / 2009 in case N A03-6220 / 2009: information about the branch should also be reflected in the new version of the Charter of the company.

We examined the main features that characterize branches and representative offices and distinguish them from legal entities. Now let's turn to the issue of securing the legal status of a branch and a representative office - let's talk about registering their creation.

Companies often forget that it is not enough to make a single decision to establish a branch or representative office and register them for tax purposes. It is also necessary to make appropriate changes to the constituent documents of the organization. So, to open a branch or representative office, you need to go through the following steps:

Make a decision on the establishment of a branch/representative office by the competent authority, determined by law and the charter;

Make appropriate changes to the constituent documents of the organization in terms of indicating information about a specific branch or representative office, the decision to establish which has been made;

Finally, put the organization on tax records at the location of the established branch / representative office.

More recently, taxpayers had to go through all three stages of the procedure on their own, knocking on the thresholds of tax authorities' offices with a whole volume of documents confirming the fact of creating a branch or representative office and making appropriate changes to the Unified State Register of Legal Entities and constituent documents. This procedure was simplified in terms of tax registration by Federal Law No. 229-FZ of July 27, 2010, which entered into force on September 2, 2010. Now registration, accounting for changes in information, deregistration of the organization with the tax authority at the location of the branch and representative office are carried out on the basis of the information from the Unified State Register of Legal Entities. This means that after making changes to the Unified State Register of Legal Entities and constituent documents in connection with the creation of a branch or representative office, the registering authority transfers a file containing the relevant information to the tax authority at the location of the organization, and that, in turn, to the tax authority at the place of establishment of the branch or representations. The latter is given five days for tax registration of the organization at the location of its branch or representative office. The taxpayer only needs to receive a Tax Registration Notice from this tax authority.

However, I would like to add that the simplification of this procedure at first glance requires the development of a detailed mechanism for debugging the process of interaction between tax authorities. For example, today the MIFTS No. 46 in Moscow provides a far from indicative example - the registration authority, in whose practice there were cases of non-submission of data on the established branch to the tax authority at the location of the organization, which significantly delayed the process of registering the branch for tax accounting. To avoid such situations, we recommend taxpayers not to wait for the performance of their functions by the Interdistrict Inspectorate, and after entering the information into the Unified State Register of Legal Entities, independently contact the tax inspectorate at their location and lobby for sending a relevant request to the registration authority.

From what moment should a branch or representative office be considered established? The answer to this question can be found in the Letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated December 16, 2009 No. 03-02-07 / 1-541: the date of creation of a branch (representative office) of an organization is the date of entering information about it in the Unified State Register of Legal Entities.

We examined the similarities between a branch and a representative office and the differences between them, determined the procedure for registering them. Now it is worth talking about another concept used in legislation and in practice, namely, a separate division of a legal entity.

The semantic content of the concept of "separate subdivision" used in tax legislation is wider than in civil law. In accordance with Article 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. A separate subdivision 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 on the powers vested in the specified subdivision. At the same time, the workplace is considered stationary if it is created for a period of more than one month.

Thus, the Tax Code of the Russian Federation distinguishes another type of separate subdivision of a legal entity, different from a branch and a representative office.

We determined that branches and representative offices have a number of features that distinguish them not only from legal entities, but also from other separate divisions, namely:

1) location outside the location of the organization;

2) endowment of property by the organization that created them;

3) availability of information about them in the constituent documents of the legal entity and in the Unified State Register of Legal Entities;

4) availability of a separate document (Regulation), duly approved, on the basis of which they operate;

5) appointment of their heads by the competent body of the organization and exercise of their powers on the basis of a power of attorney issued by the organization;

6) implementation of all functions of the organization or part thereof (for a branch);

7) representation of the interests of the organization and the implementation of their protection (for representative offices).

Moreover, the judicial authorities proceed from the fact that in order to qualify a separate structural unit as a branch or representative office, it is necessary to have all the features listed in Art. 55 of the Civil Code of the Russian Federation (see Decree of the Federal Antimonopoly Service of the Moscow District dated July 4, 2007 N KA-A41 / 5937-07-P). And the absence of at least one of them means that such a division of a legal entity cannot be recognized as a branch or representative office.

Based on their definition given in the Tax Code of the Russian Federation, a separate subdivision is characterized for tax purposes by the following features: the presence of jobs that are stationary, equipped, created outside the location of the organization itself for a period of more than a month, at the location of which the activities of this organization are carried out.

The presence of jobs is a fundamental feature of any separate structural unit, which allows you to determine whether the organization has an obligation to register it. A similar conclusion is contained in the Letter of the Ministry of Finance of the Russian Federation dated May 4, 2007 No. N 03-02-07 / 1-214: "From the meaning of the indicated provisions of paragraph 2 of article 11 of the Tax Code of the Russian Federation in conjunction with articles 16, 20, 22 and 209 of the Labor Code of the Russian Federation (hereinafter - the Labor Code of the Russian Federation) it follows that the main feature a separate subdivision of an organization is the implementation by this organization of activities in the Russian Federation outside its location by means of a stationary workplace equipped for its employee. Art. 209 of the Labor Code of the Russian Federation defines the workplace as a place 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. Based on this rule, the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation in its letters has repeatedly indicated that if an organization has not created at least one stationary workplace for its employees, which is directly or indirectly under the control of this organization, the grounds for setting there are no tax records for this organization at the place of business (see Letter No. 03-02-07/1-211 of August 5, 2005 and Letter No. 03-02-07/1-212 of August 8, 2006).
The differences between branches and representative offices and other separate structural divisions of a legal entity are of great practical importance for the purposes of taxation of the organization itself.

The point is that, according to 1 paragraph 3 of Art. 346.13 of the Tax Code of the Russian Federation, organizations that have branches and / or representative offices lose the right to apply the simplified taxation system. However, this prohibition does not apply to other separate subdivisions created in compliance with the norms of tax legislation. Therefore, a taxpayer interested in having the right to apply the simplified taxation system should keep this rule in mind when creating a structural unit.

It is noteworthy that despite the visible signs, the fact of creating a branch, and not a separate division, the taxpayers managed to challenge in court, defending their right to apply the desired "simplification". When considering such cases, the courts proceeded from the following.

In order to apply the rules on the simplified taxation system, it is not enough just to fix the decision to establish a branch or representative office on paper. The company must perform specific actual actions aimed at carrying out activities through its branch or representative office. For example, in one case, the court noted that the company did not approve the Regulations on the branch, did not appoint its head, no property was transferred to the branch, not a single workplace was equipped for its functioning, the company did not register for tax at the location of the branch. The premises for the location of the branch at the address specified in the additions to the constituent documents of the Company were not transferred to the use of the company by the owner, and the lease agreement was not concluded either. In addition, the court clarified that from the provisions of paragraphs. 1 p. 3 art. 346.12 of the Tax Code of the Russian Federation it follows that the right to apply the simplified taxation system is not granted only to those organizations that actually have separate subdivisions endowed with all the functions of a branch and formed in accordance with the requirements of civil law. In this case, the division indicated in the company's constituent documents does not actually exist, and therefore the company cannot be considered as having a branch. The introduction of amendments to the constituent documents relating to the creation of a branch, in the case when the branch has not actually been created, cannot in itself indicate a company's non-compliance with the requirements established in paragraphs. 1 paragraph 3 of article 346.12 of the Tax Code of the Russian Federation (see Resolution of the Federal Arbitration Court of the North-Western District of July 14, 2009 N A56-40765 / 2008).

In another case, the court came to the conclusion that the separate subdivision created by the company, in essence, does not have the signs of a branch defined by Article 55 of the Civil Code of the Russian Federation, since it does not represent the interests of the company, the founders of the company did not endow it with the functions and powers provided for by the named article (Resolution of the Federal Arbitration Court of the North Caucasus District of August 11, 2010 in case N A32-4638 / 2010).

In addition to the absence of grounds for the loss of the right to apply the simplified taxation system, separate subdivisions, unlike branches and representative offices, have one more advantage. It lies in the fact that registration of a separate subdivision is much easier than a branch or representative office. Firstly, this does not require the execution of an appropriate decision. Secondly, there is no need to enter information about a separate subdivision in the constituent documents and in the Unified State Register of Legal Entities. It is enough just to register with the tax authorities according to the rules of art. 83 of the Tax Code of the Russian Federation. This exception is of particular relevance in the case of successive creation of several separate subdivisions within a short period of time, which saves both the time allotted to the registration authority for the performance of the state function and the state duty. Especially in those subjects where the mechanism for transferring data on the creation of branches and representative offices in accordance with the new rules has not yet been worked out and it occurs with long delays.

Reporting for 2018 and Q1 2019: income tax, VAT, PBU, insurance premiums and personal income tax, amendments to the Labor Code of the Russian Federation (March 4-5, 2019, offset of hours of the IPB)

Business expansion can be carried out through the creation of a separate division or branch of the company. What are they?

What is a separate division?

Under separate subdivision It is customary for a company to understand a structure belonging to it, which is located in another territory, has a staff and represents the interests of the main office. In a separate subdivision, there must be stationary jobs (created for a period of 1 month or more).

Information about the relevant structure does not have to be included in the constituent documents of the company. At the same time, firms that form separate subdivisions must register with the Federal Tax Service at the location of each of the local institutions. To do this, it is necessary to send a notification about the opening of a unit to the territorial structure of the Federal Tax Service. This must be done within 1 month from the date of creation of the relevant structure. Having received a message about the opening of a separate division of the company, the Federal Tax Service, within 5 days, registers the company on tax records in its territory and issues a notice of this to it.

In addition, within 1 month from the date of creation of a separate subdivision, the company must notify the Pension Fund and the Social Insurance Fund about this.

What is a branch?

Under branch It is customary for firms to understand the structure belonging to it, which, like a separate subdivision, is located in another territory. At the same time, it carries out activities that, in their content, fully correspond to the functions of the main office.

As in the case of a separate subdivision, the creation of a branch is carried out at the level of local regulatory legal acts of the company. However, this procedure, as a rule, is noticeably more complicated than the one that characterizes the establishment of structures of the first type. In particular, an executive hired under an employment contract (for example, a general director) cannot establish branches. In addition, at least 2/3 of the total number of votes of the company's owners must be given for the creation of a branch - if we are talking about an LLC. The charter of the company may provide for the creation of branches in accordance with decisions taken by the board of directors.

Unlike the establishment of a separate subdivision, the creation of a branch involves the indication of information about it in the charter of the organization. In addition, data on the relevant changes in the constituent document of the company must be transferred to the Federal Tax Service - so that the said body subsequently makes adjustments to the Unified State Register of Legal Entities. At the same time, tax authorities must also send copies of documents with the participation of which changes were made to the company's charter. Or - copies of the relevant constituent document. Based on the data on the branch of the company, which are entered by the Federal Tax Service into the Unified State Register of Legal Entities, the new local structure of the company is tax registered at its location.

Information on the creation of a branch, as in the case of a separate representative office, must be transferred to the FIU and the FSS.

The branch of the organization is required to have a head - he holds his position on the basis of a power of attorney issued by the head office, as well as upon the fact that the general director issues an appropriate decision. The authority to appoint the head of the branch may be vested in other management bodies of the company.

Comparison

The main difference between a separate subdivision and a branch is that information about the structure of the first type should not be entered into the constituent documents of the company and the Unified State Register of Legal Entities. In general, the establishment of a separate division is a simpler procedure than the creation of a branch. Above, we examined what this is - the need to make a decision on the formation of a branch at a meeting of founders, transfer copies of the charter or sources corresponding to it to the Federal Tax Service, and also appoint the head of the relevant structure.

At the same time, both local institutions under consideration have much in common. So, neither one nor the other is a legal entity independent of the head office. The property they use belongs to the main organization. Separate subdivisions of firms and branches are established, as a rule, for the same purposes - expanding the brand's representation, solving local problems related to business development.

Having determined the difference between a separate subdivision and a branch, we fix the conclusions in the table.

Table

All domestic legal entities have the opportunity to open one or more separate divisions. These are both branches and representative offices, as well as other divisions, for example, stationary workplaces. The procedure for their opening and the requirements for them, as well as their definitions, are sufficiently described in the current legislative acts of Russian law. Let's try to figure out the difference between a branch and a separate subdivision.

General provisions on separate divisions

The Civil Code of the Russian Federation allows the creation and existence of legal entities that, along with other business entities, take part in entrepreneurial activities or are created to achieve specific goals (Article 48 of the Civil Code of the Russian Federation).

All organizations of the Russian Federation have the right and have the ability to create separate subdivisions (Article 55 of the Civil Code of the Russian Federation). It is important to consider that separate subdivisions are not legal entities and lack the legal capacity inherent in legal entities.

It must be remembered that a separate subdivision must be located at an address different from the address of the main organization, and have stationary jobs, i.e. jobs created for a period of more than one month (Article 11 of the Tax Code of the Russian Federation). A separate subdivision of a legal entity is a branch, representative office or stationary workplace (Article 55 of the Civil Code of the Russian Federation and Article 11 of the Tax Code of the Russian Federation).

Information about each separate subdivision, with the exception of stationary jobs, is indicated in the unified state register of legal entities, for which the organization creating them must submit completed applications to the tax inspectorate according to approved forms No. P13001, No. P13002 or No. P14001.

Types of separate divisions

Civil law names two structural divisions: a branch and a representative office. Other structural divisions, isolated from the main organization, do not contain the norms of the Civil Code of the Russian Federation.

But the list of divisions that are separate from the main organizations is also contained in other legislative acts.

Thus, the tax legislation directly indicates the possibility of recognizing as separate parts of the main organization any territorially separate structure that has stationary jobs.

A workplace, including a stationary one, is a place that is controlled by the organization and in which the employee performs his labor functions (Article 209 of the Labor Code of the Russian Federation).

Currently, the list of structures that can be recognized as separate entities is open and is not limited to a branch and a representative office.

Each type of structural units has not only its own distinctive features, but also common ones.

Let's try to figure out what is the difference between a branch and a separate subdivision.

Branch Differences

The concept of a branch is enshrined in paragraph 2 of Art. 55 of the Civil Code of the Russian Federation, according to which the branch is not only geographically removed from the main organization, but also performs all or part of the functions of the main organization, and also performs the functions of a representative office.

It should be noted that the concepts of representation and branch are different. Such differences already follow from the definitions of both structural units, which are given in civil law.

Consider the main differences between a branch and a separate subdivision in the table below.

As can be clearly seen from the table, the differences between different types of separate structural units are much wider than just differences in names.

The differences existing between different types of structural units are of a fundamental nature and consist mainly in the functions for which the corresponding separate structural unit is created, as well as in order to achieve which the structural unit is created.

It should also be remembered that there are certain common features between separate structural units, for example, they are not legal entities, information about them does not need to be reflected in the charters of organizations, their heads can only act on the basis of a power of attorney, and the structural units themselves can only act on the basis of the provisions . Each separate subdivision must have stationary workplaces.

When making a choice between a branch or a separate subdivision, one should decide on the functions that the corresponding structure will perform, as well as the goals for which it is created. Moreover, the body of the main organization that makes the decision to open separate subdivisions also needs to take into account the following: whether it is planned to independently maintain accounting by separate subdivisions, and whether such subdivisions will be endowed with property and whether current accounts will be opened for them.

As a conclusion to this article, it can be noted that the right to choose a specific separate subdivision belongs exclusively to the organization that creates it. But when making a final decision on the form of a separate subdivision, it is simply necessary to study in detail the features of each of the possible ones.

A legal entity, unlike an individual entrepreneur, has the opportunity and the right to open its own separate subdivision. There may be several of them. There are a number of varieties of "isolations". Most often there are representative offices and branches. There are also equipped workplaces. Let's find out how.

Peculiarities

The Civil Code provides for the right to create organizations for doing business. Legal entities are opened, as a rule, by ordinary citizens. They also run their own business.

Any firm is opened to obtain some positive result. Legal entities have the same rights as other business entities.

Literally every organization registered in the territory of the Russian Federation can open (hereinafter also - OP). This right is enshrined in Article 55 of the Civil Code of the Russian Federation.

When opening a separate division of their enterprise, managers should understand that in this case there is no question of creating a new legal entity. The OP does not have the same legal status.

But to open a separate subdivision, desire alone is not enough. According to the Tax Code (Article 11), it must have a number of features. Namely:

• the address of the head office (the one that is recorded in the registration and statutory documents) and the address of the EP should not be identical;
• it is obligatory to have equipped workplaces introduced for the work of employees for a period of 1 month.

The Tax Code also contains information on possible types separate divisions: branch or representative office, or stationary workplace (hereinafter referred to as CWP). Each of them has both its own characteristics and common features.

For example, PSA data is not entered into the Unified State Register of Legal Entities. And in the case of a branch or representative office, this is mandatory.

During the creation of a separate division of the organization, you need to fill out a special information form (it has its own for each type of OP) and take it to the IFTS.

Varieties

Information about the types of structural divisions is available in several legislative acts at once, but the data in them differ. So:

It turns out that these codes somewhat contradict each other.

Note that the workplace is understood as a place that is under the control of responsible officials for the employee to perform his immediate tasks and duties on it.

The number of varieties of OP includes not only a branch and a representative office. This list is somewhat longer. The law allows to recognize other structural parts of the organization as separate subdivisions. All of them have common features and their own characteristics.

Branch specifics

A branch is one of the most common forms of separate divisions. This variety allows not only to create a geographically remote OP, but also to endow it with many functions.

An important feature is that a branch is a separate subdivision of a legal entity which may at the same time bear the functions and duties of a representative office.

You can not combine the concepts of a branch and a representative office. These two forms of separate subdivision have many differences, functional, for example. Even the definitions from the Civil Code of the Russian Federation testify to this.

In order to have a clearer understanding of what the difference between a branch and a separate subdivision (table presented below), it is necessary to consider the functions, capabilities and other features of each of the forms.

The tabular form makes it easy to understand what is the difference between a branch or a separate division different type. A branch office has more in common with a representative office than with a CPM. The latter, in terms of their functionality, rights and opportunities, although they are OPs, they cannot conduct independent activities, but are engaged only in current work within the framework of labor relations.

Among these three forms of "isolation" there are both similarities and differences. They are closely intertwined with each other, but do not lose their individuality.

Most striking are the differences in the functionality of these separate units. After all, the type of this or that structure is assigned by law precisely on the basis of the tasks that are set for a branch, representative office or CRM.

The purpose of each form is also different. The branch has the most rights and opportunities. Perhaps this is the main What is the difference between a branch and a separate division. However, this does not mean that the other EPs are not in demand in practice. It all depends on the goals of the organization itself. Often several types of separate subdivisions are created at once.

We must not forget about the common features of all OPs. Despite serious differences in functionality, all of them are not registered as separate legal entities. They are only part of the organization. When opening any of these structural divisions, it is not necessary to make adjustments to the charter.

For the work of the OP, you do not need a lot of papers. It is enough to draw up a power of attorney for his head. These divisions do not have their own statutes. The main document for them is the provisions on the basis of which they work.

Availability of equipped workplaces is another mandatory condition for absolutely any EP. Either branch or separate division of a different kind.

Which shape to choose

The question of choosing the form of OP - branch or representative office, or separate subdivision of a different kind - can stand before the head of any organization. You need to come from:

• functionality of the future structural unit;
• the purposes for which it is created.

Even at the planning stage, you need to decide whether the new division will:

• maintain independent accounting;
• open a bank account;
• transfer and/or acquire property.

Any organization has the right to choose the format of its future separate subdivision. But having opened the OP, you will have to act in accordance with the norms of the law. So, for example, the law does not allow opening a current account for separate jobs.