Home • Blog • Blog for entrepreneurs • Separate divisions under the simplified tax system: opening and reporting
Maxim Demesh
January 27, 2022
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The need to open separate units under the simplified tax system arises quite often. If the organization has decided to open such a division, then the question arises whether the simplified tax system can have separate divisions in principle. The answer is: the use of a simplified taxation system does not prohibit the opening of separate divisions. But at the same time, the “simplified procedure” cannot be used when opening branches.
When opening an OP, it is necessary to take into account the nuances provided for by law. In particular, it is mandatory to inform the tax office about this decision. It is also necessary to take into account the legal requirements for the transfer of salary tax to the simplified tax system, as well as the form and procedure for submitting reports on this tax. For example, according to paragraph 7 of Article 226 of the Tax Code of the Russian Federation, when opening a separate division, it is important to take into account that the payment of personal income tax to the employees of the division is made at the place of registration of the division itself. Accordingly, the submission of the 6-NDFL calculation is also carried out at the place of registration (clause 2 of Article 230 of the Tax Code of the Russian Federation).
If controversial issues arise regarding separate divisions of the simplified tax system, it is better to consult with specialists. Failure to fulfill obligations under the simplified OP entails the imposition of penalties by regulatory authorities. To avoid this, it is necessary to understand at what point the organization becomes obligated to report data about the OP to the tax office.
simplified tax system and a separate division in 2021-2022
Before opening a separate division under the simplified tax system or switching to a simplified system if there are such divisions, you need to figure out whether the legislation allows the use of the simplified tax system by taxpayers who have separate divisions.
Let's do so. Subp. 1 clause 3 art. 346.12 of the Tax Code of the Russian Federation prohibits the use of a simplified system by organizations with branches. A branch is a separate division located outside the location of a legal entity and performing all its functions or part of them, endowed with property by the legal entity that created it, operating on the basis of provisions approved by this legal entity and specified in the Unified State Register of Legal Entities (clauses 2, 3 of Article 55 of the Civil Code of the Russian Federation).
Tax legislation has its own definition of a separate division. According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, a separate division of an organization is any territorially separate division from it, at the location of which stationary workplaces are equipped, that is, workplaces created for a period of more than 1 month. In this case, a worker means a place where the employee must be or where he needs to arrive in connection with his work, which is directly or indirectly under the control of the employer (Part 6 of Article 209 of the Labor Code of the Russian Federation).
A separate division of an organization is recognized as such regardless of whether its creation is reflected in the constituent and other organizational and administrative documents of the organization, and regardless of the powers vested in the specified division.
As you can see, the concept of a separate division in the Tax Code of the Russian Federation is broader than a branch. It follows that the presence of divisions in an organization that are not branches does not prevent the application of the simplified taxation system. This has been confirmed more than once by regulatory authorities (letters from the Ministry of Finance of Russia dated April 22, 2019 No. 03-11-11/29010, dated June 5, 2018 No. 03-11-06/2/38208, etc.).
Thus, it is possible to open a separate division under the simplified tax system in 2021-2022. The main thing is that it does not have any signs of a branch. Such a representative office could be, for example, a production workshop, store or warehouse located outside the head office.
At the location of each separate division (except for a branch or representative office) of the organization, it is necessary to register with the tax authority (clauses 1, 3, 4 of Article 83 of the Tax Code of the Russian Federation). This must be done even if only 1 job has been created.
Accounting and reporting on general taxes of a separate division
A separate division can be allocated to a separate balance sheet. In addition, a separate division may be vested with the functions of calculating payments and rewards in favor of individuals who are registered in this separate division. Such decisions are made independently by the organization on the basis of the feasibility and convenience of keeping records of business activities.
According to sub. 7 clause 3.4 art. 23 of the Tax Code of the Russian Federation, starting from January 1, 2017, it became necessary to inform the tax authority about the assignment of functions for calculating wages to employees. The notification form is enshrined in Appendix No. 1 to the order of the Federal Tax Service of Russia dated January 10, 2017 No. ММВ-7-14/4.
Let's look at how a separate division submits reports under the simplified tax system. We emphasize once again that a separate division is not an independent legal entity, and therefore cannot apply a taxation system different from the taxation system of the parent organization. Thus, for the purposes of the simplified tax system, records of a separate unit are maintained for the entire organization and a single KUDiR is filled out.
What general taxes, not related to the presence of employees, do organizations pay using the simplified tax system? Let's consider the general case (without taking into account VAT, income tax, and so on).
It is necessary to pay tax and submit reports on this tax to one tax office.
We have collected information on where exactly you should pay taxes and submit reports for a separate division when applying the simplified tax system in the table:
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 09/04/2020 No. ED-7-14 / [email protected] The submission period is 1 month from the date of creation of the unit. You can download it for free by clicking on the image below:
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] Here is the form for such a notification:
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). You can notifications via the link below:
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 .
What is a separate unit (SU)
All Russian enterprises have the right to open branches.
Existing legislation regulates the signs and all aspects of their activities. Let us examine in detail the legal norms regulating the activities of these structural units of companies. The definition of what a separate division of a legal entity means is given in Article 55 of the Civil Code of the Russian Federation - this is a representative office or branch that is located outside the location of the main office that represents and protects the interests of the legal entity.
IMPORTANT!
A separate division is not a separate legal entity, since it operates on the basis of regulations approved by the parent company. Article 11 of the Tax Code states that any separate division of a legal entity located outside the location of the main office, in which stationary workplaces are equipped for a period of more than one month, is separate.
What is the penalty for failure to register a unit?
For violation of the deadline for sending a message to the inspectorate about the opening of a separate division, the organization may be held accountable under clause 1 of Art. 126 of the Tax Code of the Russian Federation.
This is a fine of 200 rubles. for each document not submitted.
In this case, officials of the organization may face administrative liability under Art. 15.6 Code of Administrative Offenses of the Russian Federation - fine from 300 to 500 rubles.
For conducting activities without tax registration on the grounds provided for by the Tax Code of the Russian Federation, the organization may be held liable under clause 2 of Art. 116 of the Tax Code of the Russian Federation - a fine of 10% of the income received as a result of such activities, but not less than 40,000 rubles. But this rule does not apply to failure to register an OP.
Where to pay simplified tax and submit reports
Despite the presence of divisions, payment of the single tax according to the simplified tax system and advance payments thereunder is made entirely at the location of the organization (clause 6 of article 346.21 of the Tax Code of the Russian Federation).
A declaration is also submitted at the location of the head office (clause 1 of Article 346.23 of the Tax Code of the Russian Federation).
Read about the liability that comes with failure to submit a declaration in this material .
How many books of income and expenses should be kept if the organization has created separate divisions, ConsultantPlus experts explained. Get trial access to the system and go to the Guide to the simplified tax system.
Registration of an OP with the Social Insurance Fund
In terms of contributions for injuries, the insurer must register at the location of the separate unit if (subclause 2, clause 1, article 6, clause 11, article 22.1 of the law “On compulsory social insurance...” dated July 24, 1998 No. 125-FZ , order of the FSS of the Russian Federation dated April 22, 2019 No. 217):
- it is not abroad;
- has its own current account;
- calculates and issues salaries.
It is necessary to register with the Social Insurance Fund at the location of the unit within 30 calendar days from the date of creation of the OP (subclause 2, clause 1, article 6 of Law No. 125-FZ).
The registration procedure and the list of documents to be submitted are determined by Order of the Ministry of Labor of Russia dated April 29, 2016 No. 202n. In accordance with paragraphs. 6, 10 to receive notification of registration (Appendix 1 to the above order) the following are submitted to the fund at the location of the unit:
- application (form approved by order of the Federal Social Insurance Fund of the Russian Federation dated April 22, 2019 No. 217);
- a certificate from the bank confirming the opening of a branch account;
- a document confirming that the division pays payments to individuals (for example, a copy of the regulations on the separate division, which indicates the corresponding authority).
Copies may be paper or electronic.
The fund receives all other information from the Federal Tax Service and other social insurance departments through interdepartmental exchange.
Within 3 working days from the date of receipt of the documents, the FSS will register the organization with subsequent notification (clause 14 of Appendix 1 to Order No. 202n).
For violating the deadline for registering an enterprise with the Social Insurance Fund, a company may be fined (Article 26.28 of Law No. 125-FZ):
- if there is a delay of up to 90 days inclusive - by 5,000 rubles;
- more than 90 days - by 10,000 rubles.
A fine is also provided for the head of a legal entity - in the amount of 500 to 1,000 rubles. (Article 15.32 of the Code of Administrative Offenses of the Russian Federation).
Reporting on insurance premiums and their payment by a separate division
For reporting related to the presence of employees, there are special rules for separate divisions - we are talking about the payment of insurance premiums, personal income tax and pension reporting.
When creating separate divisions, there is no need to register separately with the Pension Fund or Social Insurance Fund. Therefore, reports to the Pension Fund (SZV-M, SZV_STAZH, etc.), as well as to the Social Insurance Fund (form 4-FSS), are submitted by the parent organization for the entire enterprise to those funds where it is registered.
Clause 11 Art. 431 of the Tax Code of the Russian Federation provides that interaction on contributions between a separate division of the organization and the tax authority (payment of contributions and submission of calculations for insurance premiums) is carried out depending on who makes payments to the employees of the separate division:
- if a separate unit accrues and makes payments to individuals, then reporting and payment of contributions goes to the tax office to which the separate unit is attached;
- If the head organization conducts settlements with individuals, then they report on contributions and pay them to the Federal Tax Service at the location of the “head”.
Registration of an OP with the Pension Fund of Russia
A division is also registered with the Pension Fund only if it pays benefits to employees and has a bank account (subclause 3, clause 1, article 11 of the Law “On OPS” dated December 15, 2001 No. 167-FZ). But you do not need to submit any documents to the Pension Fund. We have already mentioned that when vesting the OP with the authority to pay remuneration to individuals, you send a corresponding message to the Federal Tax Service. And she already transfers all the information to the Pension Fund.
The deadline for submitting such a message is one month from the date of issuance of the order to vest the OP with the appropriate powers (letter of the Ministry of Finance dated 05/05/2017 No. 03-15-06/27777).
Results
When opening a separate division, a legal entity using the simplified tax system must make sure that this division does not have all the signs of a branch in order to avoid losing the right to apply the simplified tax system. Otherwise, the rules for registering, paying taxes and submitting reports for separate divisions do not differ from the rules established for other taxation systems.
Sources:
- Tax Code of the Russian Federation
- Civil Code of the Russian Federation
- Labor Code of the Russian Federation
- Federal Law “On Compulsory Social Insurance...” dated July 24, 1998 No. 125-FZ
- Code of Administrative Offenses
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Operation optimization
Provided that the taxpayer uses UTII along with the simplified tax system, income that is not subject to single taxation must be included in the tax base paid in connection with the use of the simplified taxation system.
At the same time, according to paragraph 4 of Article 346.12 of the Tax Code of the Russian Federation, legal entities and individual entrepreneurs who, in accordance with Chapter 26.3 of the Tax Code, have switched to paying UTII for one or more types of business activity, have the right to apply a simplified taxation system in relation to other activities.
Which is an undeniable advantage and provides the opportunity for tax maneuver and tax optimization for business.
