Branches, representative offices and other separate divisions. Similarities and differences in theory and practice • Hestion

Definition of terms

First of all, let us make a reservation that the terminology of civil and tax law differs. 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 indicates that the institutions, concepts and terms of civil and other branches of legislation of the Russian Federation used in the Code are applied in the meaning 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 exactly in the meaning in which they are used in civil legislation.

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 division of a legal entity, located outside its location, which represents the interests of the legal entity and protects them.

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

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

The branch also represents the interests of the legal entity, i.e. including performing the functions of representation. In addition, the branch carries out 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 carries out actual actions aimed at fulfilling the concluded contracts, i.e. conducts production, trade or other activities, the implementation of which is 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.

Representation of a legal entity, concept and rights of a division

The concept and legal status of a representative office of a legal entity is enshrined in the current Civil Code of the Russian Federation. The legal status of a representative office coincides with the position of a branch - it is also not a legal entity.

The rights and functions of the representative office are practically enshrined in the very name of this separate division. It represents the interests of the legal entity and does everything to ensure their constant protection.

All data on the representative office must be included in the charter of the legal entity before the registration of a separate division occurs.

To begin the functioning of a representative office, it is provided with the necessary property. In certain situations, for example, when administrative liability has been imposed on a legal entity, this property may become the object of foreclosure.

The permanent activities of the representative office are based on the provisions created and approved by the legal entity. If necessary, these provisions may be amended as required.

The head of the representative office acts on the basis of a power of attorney drawn up and signed by the legal entity. At the same time, all participants in civil transactions who enter into legal relations with the representative office, in fact, cooperate with the legal entity through an individual - the head of the representative office.

General characteristics of a branch and representative office

Having considered both concepts, we can identify features that are similar for both the branch and the representative office. The first and, perhaps, most defining feature comes down to the fact that neither the branch nor the representative office are legal entities, i.e., independent participants in civil transactions, but enter into civil, labor, tax and other legal relations on behalf of the legal entity that created them . In practice, this feature 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 obligations arising in connection with their activities;
branches and representative offices cannot act as plaintiffs and defendants in court, i.e. cannot independently participate in legal proceedings on their own behalf.

This is how the Presidium of the Supreme Arbitration Court of the Russian Federation (hereinafter referred to as the SAC RF) comments on this issue in Information Letter No. 34 dated May 14, 1998 “On the consideration of claims arising from the activities of separate divisions of legal entities”: “... a separate division that is not a legal entity , may bring a claim only on behalf of a legal entity... The statement of claim signed by the head of a separate division must be accompanied by a power of attorney (or a copy thereof) of the legal entity confirming his 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 clause 2, part 1, art. 108 Arbitration Procedure Code of the Russian Federation.”

A similar conclusion is contained in the Resolution 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 some issues related to the implementation of part one of the Tax Code of the Russian Federation.” By virtue of clause 9 of this Resolution, 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 obligated persons. Responsibility for failure to fulfill all obligations to pay taxes, fees, penalties and fines lies with the legal entity that includes the relevant branch (representative office).

Guided by this legal position, the FAS Moscow authority in its Resolution dated April 15, 2009 No. KA-A40/1708-09 noted that branches are not subjects of tax legal relations, therefore, cannot be brought to tax liability, since liability for actions (inaction) of branches only a legal entity can be involved.

Branches, representative offices and other separate divisions

We suggest reading an interesting article by our colleagues (www.gestion.ru) entitled “Branches, representative offices and other separate divisions. Similarities and differences in theory and practice"

Shnitko Veronika Valerievna, Head of the registration department, Law Firm of St. Petersburg “Gestion”,

/This article will help you understand the differences between branches, representative offices, and other separate divisions, highlight their main features and help you choose the right form of doing business, not forgetting the specifics of the company’s taxation regime./

Many companies pursuing the goal of expanding their business, in practice, are faced with the problem of choosing the correct form of securing 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 units? Or maybe it's one and the same?

First of all, let us make a reservation that the terminology of civil and tax law differs. 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 civil and other branches of legislation of the Russian Federation used in the Code are applied in the meaning 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 exactly in the meaning in which they are used in civil legislation.

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 division of a legal entity located outside its location, which represents the interests of the legal entity and protects them.

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

The branch also represents the interests of the legal entity, i.e. including performing the functions of representation. However, in addition to this, the branch carries out 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 carries out actual actions aimed at fulfilling the concluded contracts, i.e. conducts production, trade or other activities, the implementation of which is carried out by the legal entity itself. In this case, the branch can perform all types of activities of the organization or some of them.

transactions on behalf of a branch or representative office are concluded by the legal entity itself;
it is also responsible for obligations arising in connection with their activities;
branches and representative offices cannot act as plaintiffs and defendants in court, i.e. cannot independently participate in legal proceedings on their own behalf. This is how the Presidium of the Supreme Arbitration Court of the Russian Federation (hereinafter referred to as the SAC RF) regulates this issue in Information Letter No. 34 dated May 14, 1998 “On the consideration of claims arising from the activities of separate divisions of legal entities”: “... a separate division that is not a legal entity , may bring a claim only on behalf of a legal entity... The statement of claim signed by the head of a separate division must be accompanied by a power of attorney (or a copy thereof) of the legal entity confirming his 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 clause 2, part 1, art. 108 Arbitration Procedure Code of the Russian Federation.”

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.

There are different opinions regarding the concept of “location of a legal entity” in modern legal literature. Some are inclined 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 a legal entity is located, or in its absence - another body or person authorized 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 referred to as the Unified State Register of Legal Entities). In accordance with this assumption, territorial isolation means that if an additional office of a company 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 premises from it, they can safely be classified as a branch on this basis or representative office.

In accordance with the opposite theory, the location of a legal entity should be considered not as a specific postal address contained in the Unified State Register of Legal Entities, but as belonging to a specific 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 noted that tax authorities, guided for the most part by the Tax Code and without delving into the theoretical aspects of civil legislation, do not limit taxpayers’ 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 Letter of the Department of Tax Administration of the Russian Federation for Moscow dated 06/09/2004 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 of this property and funds - the legal entity itself has real and obligatory rights to them, and the branch or representative office only actually owns and uses them.

Branches and representative offices are organizationally separate from the legal entity that created them. This means that their managers 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 discussed in paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 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 is stated:

“It must be borne in mind that the corresponding 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, regulations on the branch (representative office), etc., or appear 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 is necessary to find out whether the head of the branch (representative office) had at the time of signing the agreement the corresponding powers expressed in the regulations 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 completed on behalf of the legal entity.

It must also be taken into account that the head of a branch (representative office) has the right to entrust 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 operate 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 creation of a branch or representative office. We note 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 edition of the Charter, adopted in accordance with the requirements of Federal Law No. 312-FZ of December 30, 2008. This question was unequivocally answered by the Federal Arbitration Court of the West Siberian District in its decision of December 17, 2009 No. F04-7560/2009 in case No. A03-6220/2009: information about the branch must also be reflected in the new edition of the company’s Charter.

Companies often forget that making one decision to create a branch or representative office and registering it for tax purposes is not enough. It is also necessary to make appropriate changes to the organization's constituent documents. So, to open a branch or representative office, you must go through the following steps:

-make a decision on the creation of a branch/representative office by the competent authority determined by law and charter;

- make appropriate changes to the organization’s constituent documents in terms of indicating information about a specific branch or representative office, the decision to create which has been made;

-finally, register the organization for tax purposes at the location of the established branch/representative office.

Until recently, taxpayers had to go through all three stages of the procedure on their own, knocking up the thresholds of the offices of tax authorities 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 came into force on September 2, 2010. Now registration, accounting of changes in information, deregistration of an organization with the tax authority at the location of the branch and representative office are carried out on the basis of information from the Unified State Register of Legal Entities. This means that after making changes to the Unified State Register of Legal Entities and the 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 creation of the branch or representative office. representative offices. The latter is given five days to register the organization for tax purposes at the location of its branch or representative office. The taxpayer can only receive a Notification of Tax Registration from this tax authority.

However, I would like to add that simplifying this procedure at first glance requires the development of a detailed mechanism for debugging the process of interaction between tax authorities. For example, today, a far from illustrative example is given by MIFTS No. 46 for Moscow, a registration authority, in whose practice there have been cases of failure to submit data about an established branch to the tax authority at the location of the organization, which significantly delayed the process of registering the branch for tax purposes. To eliminate such situations, we recommend that taxpayers do not wait for the Interdistrict Inspectorate to perform its functions, but after entering information into the Unified State Register of Legal Entities, independently contact the tax office at their location and lobby for the relevant request to be sent 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 the organization is the date of entering information about it into the Unified State Register of Legal Entities.

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

The semantic content of the concept of “separate division”, used in tax legislation, is broader than in civil law. In accordance with Article 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. 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. In this case, a 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 division of a legal entity, different from a branch and representative office.

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

1) location outside the location of the organization;

2) vesting 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) the presence of a separate document (Regulations), duly approved, on the basis of which they act;

5) appointment of their managers by the competent body of the organization and the 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) representing the interests of the organization and protecting them (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, all the characteristics listed in Art. 55 of the Civil Code of the Russian Federation (see Resolution 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 division is characterized for tax purposes by the following characteristics: the presence of workplaces 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, allowing one 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. N 03-02-07/1-214: “From the meaning of the specified provisions of paragraph 2 of Art. 11 of the Tax Code of the Russian Federation in conjunction with Art. 16, 20, 22 and 209 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) it follows that the main feature of a separate division of an organization is that this organization carries out activities in the Russian Federation outside its location through a stationary workplace equipped for its employee.” Art. 209 of the Labor Code of the Russian Federation defines a workplace as 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. Based on this norm, the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation has repeatedly indicated in its letters 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 placing There are no tax records of this organization at the place of activity (see Letter dated August 5, 2005 N 03-02-07/1-211 and Letter dated August 8, 2006 N 03-02-07/1-212).

The differences between branches and representative offices and other separate structural divisions of a legal entity acquires important practical significance for tax purposes of the organization itself.

The fact is that, according to paragraphs. 1 clause 3 art. 346.13 of the Tax Code of the Russian Federation, organizations with branches and/or representative offices lose the right to use a simplified taxation system. However, this prohibition does not apply to other separate divisions created in compliance with tax legislation. Therefore, a taxpayer interested in having the right to apply a 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, 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 a simplified taxation system, it is not enough to simply consolidate the decision to create a branch or representative office on paper. The company must take specific actual actions aimed at carrying out activities through its branch or representative office. For example, in one case, the court noticed that the company did not approve the Regulations on the branch, did not appoint its director, no property was transferred to the branch, not a single workplace was equipped for its functioning, and the company did not register for taxation at the location of the branch. The premises for the location of the branch at the address specified in the amendments to the constituent documents of the Company were not transferred to the company for use by the owner, nor was a lease agreement concluded.

In addition, the court explained that from the provisions of paragraphs. 1 clause 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 divisions endowed with all the functions of a branch and formed in accordance with the requirements of civil legislation. In this case, the division indicated in the constituent documents of the company does not actually exist, and therefore the company cannot be considered to have a branch. The introduction of amendments to the constituent documents regarding the creation of a branch, in the case where the branch is not actually created, cannot in itself indicate the company’s non-compliance with the requirements established in paragraphs. 1 clause 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 division created by the company, in essence, does not have the characteristics of a branch defined in 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 vest it with the functions and powers provided for by the said article (Resolution of the Federal Arbitration Court Court of the North Caucasus District dated August 11, 2010 in case No. A32-4638/2010).

In addition to the absence of grounds for losing the right to use the simplified taxation system, separate divisions, unlike branches and representative offices, have another advantage. It lies in the fact that registering a separate division is much simpler than a branch or representative office. Firstly, this does not require the execution of a corresponding decision. Secondly, 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. This exception becomes especially relevant in the case of the alternate creation of several separate divisions within a short period of time, which allows saving both the time allotted to the registration authority to perform a state function and the state duty. Especially in those entities where the mechanism for transmitting 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.

In any case, even despite all the organizational simplicity of the design and operation of a separate division, do not forget that modern business customs dictate the current rules of doing business and require its participants to legally formalize the form of building business relations.

The problem of territorial isolation

In the 90s and 2000s, there were fierce disputes between lawyers about what was the “location” of a legal entity? Some believed that this was a specific address, i.e. settlement, street, house, office where the permanent executive body of a legal entity is located, or in its absence - another body or person authorized 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 referred to as the Unified State Register of Legal Entities). In accordance with this assumption, territorial isolation means that if an additional office of a company 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 premises from it, they can safely be classified as branch or representative office.

Other lawyers believed that the location of a legal entity should not be considered a specific postal address contained in the Unified State Register of Legal Entities, but rather affiliation with a specific subject of the Russian Federation (for example, St. Petersburg, Moscow, Saratov, and so on).

This dispute was resolved only in 2015, when the legislator adopted Law No. 209-FZ of June 29, 2015. This regulatory act amended the Civil Code of the Russian Federation and established that the location of a legal entity is a specific locality (municipal entity) on the territory of the Russian Federation. In turn, the Unified State Register of Legal Entities indicates the address of the legal entity within its location.

Thus, 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. outside the locality (municipal entity) where the parent company is registered.

Issues of property isolation

The property isolation of branches and representative offices, as their next important feature, means that, firstly, they have the right to own and use property allocated by a legal entity to a separate balance sheet, and secondly, they have the right to have a separate current account.

However, regarding the “separate balance sheet of a separate division”, not everything is so simple. The legislation does not know such a term at all. In practice, it is understood as a document with reporting information on the activities of an economic entity, as well as a method of recording indicators that allows them to be correlated with each other. Paragraph 8 of PBU 4/99 “Accounting statements of an organization” states that such statements must contain performance indicators of all branches. And hence the conclusion - branches do not prepare separate reports and do not draw up a separate balance sheet. Consequently, when regulations talk about a “separate balance sheet,” they simply mean a list of indicators that a legal entity has established for its divisions allocated to a “separate balance sheet.”

In addition, branches and representative offices only actually own and use the property (and funds) allocated to them by the organization. They do not have the right of disposal, operational management or economic management - real and obligatory rights to them.

Heads of branches and representative offices

Branches and representative offices are organizationally separate from the legal entity that created them. This means that their managers are appointed by a legal entity and act on the basis of a power of attorney issued to them. The Supreme Arbitration Court, and later the Supreme Court, have repeatedly emphasized this point. Thus, on June 23, 2015, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 25, in which it once again clarified that the main powers of the head of a branch (or representative office) are confirmed only by his power of attorney, and not by the regulations or constituent documents of the legal entity.

It is interesting that back in 1996, paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” indicated that: “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 under its power of attorney, it should be clarified whether the head of the branch (representative office) had the appropriate powers expressed at the time of signing the agreement in the regulations on the branch and power of attorney. Transactions made by the head of a branch (representative office) with such authority should be considered completed on behalf of the legal entity.”

A little less than 20 years have passed and the Supreme Court, clarifying this point, considered it necessary to remove the phrase “in the regulations on the branch.” Thus, he additionally emphasized that the authority of the manager is confirmed only by a power of attorney.

Another comment on Article 55 of the Civil Code of the Russian Federation

1. Although branches and representative offices are called in paragraph 1 as separate divisions (more separate than ordinary divisions or components) of a legal entity, they still continue to remain its components, as a result of which they themselves cannot be legal entities, having their own civil personality and do not have legal capacity. Therefore, as such, they cannot participate in the civil legal relationship of representation. The head of the branch (representative office) acts as a representative of the legal entity. Therefore, it is to him, in his name, and not to the branch or representative office as a whole, that a power of attorney is issued, defining the scope of his powers. Resolution of the Plenums of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation N 6/8 (clause 20) requires the head of a branch or representative office (official) to have a power of attorney even in the case when his powers are defined by the constituent documents of a legal entity, which does not fully correspond to clause 3 of Art. . 53 Civil Code.

2. According to paragraph 5 of Art. 36 of the APC “a claim against a legal entity arising from the activities of its branch or representative office located outside the location of the legal entity may be brought at the location of the legal entity or at the location of its branch or representative office.” In these cases, a party to the case is a legal entity, the recovery is made by the court from it or in favor of it.

3. The difference between a branch and a representative office lies in the scope and nature of the functions of both. From a comparison of paragraphs. 1, 2 of the commented article it is clear that the range of functions of a branch is wider: it may also include the functions of a representative office.

If a legal entity transforms its branch (representative office) into a legal entity, it ceases to be a division of the legal entity. As part of, within a legal entity, another legal entity cannot exist: this would violate the principle of property separation and contradict Art. 48 Civil Code. There is a reorganization in the form of separation (clause 1, article 57 of the Civil Code). The separated legal entity and the one from which it was separated can enter into civil, incl. contractual, legal relations between themselves and with other persons, and the possible dependence of one of them on the other is regulated by special norms of the Civil Code (see Articles 105, 106 on business companies).

Mandatory reflection of information about branches and representative offices in the Unified State Register of Legal Entities

Until 2015, business entities were required to indicate information about branches and representative offices in the Charter. As a result, 1/3 of the constituent document of a large federal company consisted of a long list of branches and their addresses, and changes to the Charter were made every six months.

Taking this fact into account, the state changed this procedure. Currently, legislation requires that information about branches and representative offices be contained only in the Unified State Register of Legal Entities. Information about them may not be included in the Charter (Article 55 of the Civil Code of the Russian Federation).

Creation of branches and representative offices

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 consolidating the legal status of a branch and representative office - let's talk about registering their creation. As we said above, information about branches must now be indicated only in the Unified State Register of Legal Entities. But this does not mean that this information should be immediately excluded from the existing statutes. The new rules apply only to branches and representative offices created after 09/01/2014.

Today, to open a branch or representative office, you need to go through the following steps:

make a decision on the creation of a branch/representative office by the competent authority determined by law and charter;
appoint in a decision (minutes, or order) the head of a branch or representative office;
fill out an application in form P13001 or P14001 and have it certified by a notary. (We spoke in some detail about the problem associated with the use of one form or another in a separate article. Those interested can familiarize themselves with it on our website;
submit documents to the registration authority at your location.

Registration, accounting of changes in information, deregistration of an organization with the tax authority at the location of the branch and representative office are carried out on the basis of information from the Unified State Register of Legal Entities. This means that after making changes to the Unified State Register of Legal Entities, in connection with the creation of a branch or representative office, the registering authority transmits via electronic communication channels 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 location creating a branch or representative office. The latter is given five days to register the organization for tax purposes at the location of its branch or representative office.

The procedure for appointing the head of a separate division, the scheme for amending the Charter

The procedure for creating a separate division requires a clear knowledge of the procedure and various nuances of this area, since compliance with current rules and regulations is very important here.

The initial stage is the decision to create one or several separate divisions by the management of the company. This is followed by approval and registration of the Regulations on the creation of a representative office or branch. The organization must then make all mandatory changes to the Charter.

It must contain information about absolutely all separate divisions. In this case, registration must be completed, otherwise the entries in the charter will have no legal force.

The next step will be the appointment of a manager. Data about it must also be included in the charter of the legal entity. After which a corresponding order is issued to hire a person for a position, and an employment contract is concluded with him.

The final step in appointing the head of a branch or representative office will be the creation of a power of attorney, on the basis of which his work will be carried out.

Subsidiaries are created according to a slightly different scheme, since they are independent legal organizations.

Then you need to visit the tax authority and register. In this case, the taxpayer organization must be registered not only at its location, but also at the location of all separate divisions of the company.

After submitting information to the tax authority, registration of a separate division will be completed.

Separate division in tax law

The semantic content of the concept of “separate division” used in tax legislation is broader than in civil law. In accordance with Article 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. 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. In this case, a 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 division of a legal entity, different from a branch and representative office.