Separate subdivisions of taxes. The Ministry of Finance clarified the procedure for paying insurance premiums and reporting by organizations with separate divisions. The territory is the same, taxation is different

Paragraph 2, clause 7 of Art. 226 of the Tax Code of the Russian Federation states that Russian organizations- tax agents (that is, organizations from which or as a result of relations with which the taxpayer received income taxable with personal income tax), which have separate subdivisions, are obliged transfer the calculated and withheld amounts of personal income tax to the budget both at the place of its location and at the location of each of its separate subdivisions.

The amount of tax payable to the budget at the location of such a subdivision is determined based on the amount of taxable income accrued and paid to employees of this separate subdivision, as well as based on the amounts of income accrued and paid under civil contracts concluded with physical by persons of a separate subdivision (authorized persons of a separate subdivision) on behalf of the organization ( par. 3 of the named item).

In a payment order for the transfer of tax to the budget by to each a separate subdivision should indicate the checkpoint assigned to the subdivision during tax registration at the location, as well as the OKTMO code corresponding to the location of the subdivision (see. Letter of the Federal Tax Service of Russia dated October 14, 2016 No. BS-4-11 / [email protected] ). Moreover, in Letter dated 24.10.2016 No. 03-04-06 / 62497 The Ministry of Finance emphasized: ch. 23 of the Tax Code of the Russian Federation does not contain norms providing tax agents with separate subdivisions to independently choose a subdivision through which personal income tax would be transferred (and therefore, the possibility of presenting the calculation of income tax amounts individuals).

What to do if an employee has two jobs

In the event that an employee is established two jobs at the location of the head office and at the location of a separate subdivision of personal income tax from the income of such an employee, the company must transfer to the appropriate budgets both at the location of the head office and at the location of the subdivision, taking into account the time actually worked by the employee. This time is determined on the basis of the time sheet, based on the data of certificates of the location of the employee for the corresponding settlement period.

Liability of a tax agent

Well, it is difficult to dispute the validity of these recommendations. The aforementioned norms are formulated unambiguously, which excludes their double interpretation. And similar explanations about the procedure for paying personal income tax by organizations that have separate subdivisions are given by the regulatory authorities with enviable regularity (note that in a similar manner, tax agents are required to submit and tax reporting for the indicated tax - a certificate in the form 2 ‑ NDFL and calculation in the form of 6 ‑ NDFL). Let's name some of them: letters of the Ministry of Finance of Russia dated December 23, 2016 No. 03-04-06 / 77778, dated 17.10.2016 No. 03-05-06-02 / 60364, dated 07.12.2015 No. 03-04-06 / 71413, FTS of Russia dated 09.11.2016 No. BS-4-11 / [email protected] , dated 05.10.2016 No. BS-4-11 / [email protected] .

Meanwhile, the aforementioned tax regulations refer to responsibilities tax agent to transfer tax at the place of payment of income to taxpayers, financiers in their explanations also categorically point out that must make tax agents with separate divisions. At the same time, the establishment of any obligation (in the situation under consideration, this is the duty of the tax agent to distribute the tax withheld when paying income to taxpayers) should be accompanied by the establishment of a punishment (responsibility) for its violation.

However, in relation to the duty of a tax agent defined clause 7 of Art. 226 of the Tax Code of the Russian Federation, no measure of responsibility tax legislation was not introduced .

What the judges think

The Presidium of the Supreme Arbitration Court drew attention to this circumstance back in Resolution of 24.03.2009 No. 14519/08 in case No. A33-356 / 2008... As follows from the materials of this case, both the tax authorities and the lower courts considered that the transfer by a tax agent (having separate subdivisions) of personal income tax amounts to a different local budget than provided for by law, testifies to his failure to fulfill the obligation established clause 7 of Art. 226 of the Tax Code of the Russian Federation... In their opinion, the excessive payment of tax to one local budget cannot compensate for the losses of another local budget. And this is the basis for bringing the tax agent to responsibility for Art. 123 of the Tax Code of the Russian Federation... Recall: the composition of a tax offense in accordance with the aforementioned norm is formed by such acts of a tax agent as unlawful failure and / or non-listing (incomplete retention and / or enumeration ) v set time tax.

The supreme arbitrators, recognizing this approach of tax officials and judges to the interpretation of tax norms as incorrect, drew attention to the fact that a tax violation in the sense of Art. 106 of the Tax Code is recognized wrongful act (action or inaction ) a taxpayer, tax agent and other persons for whom responsibility is determined by this code. But since the Tax Code does not provide for liability for improper performance by a tax agent of his duties, in particular for violation of the procedure for transferring withheld personal income tax when paying income to employees of divisions, the grounds for bringing such an agent to responsibility for Art. 123 of the Tax Code of the Russian Federation no.

We emphasize: from the moment of publication Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 14519/08 tax rules governing the procedure for transferring personal income tax by organizations that have separate divisions, have not undergone any drastic changes. Did not appear also no additional reservations regarding the budget, where the tax should be transferred to the tax agent, and in Art. 123 of the Tax Code of the Russian Federation... This means that the organization that violated order of listing only Personal income tax from income withheld from the income of employees of separate divisions formally does not threaten anything. Even if the tax authorities punish her, then she has a good chance of challenging the legality of such a punishment. By the way, the specialists of the Federal Tax Service recognized the presence of this legislative "gap" back in Letter dated 02.08.2013 No. BS-4-11 / 14009, and the Ministry of Finance recommended taking into account the current judicial practice v Letter dated 10.10.2014 No. 03-04-06 / 51010.

Thus, the Presidium of the YOU in Resolution of 23.07.2013 No. 784/13 in case No. A06-9384 / 2011 also emphasized that the incorrect reflection of the OKATO code in payment documents does not lead to arrears and cannot be considered as a basis for calculating penalties, since the tax was transferred to the budgetary system of the Russian Federation by the tax agent on time.

Arbitrators, considering disputes that have arisen in similar situations, often say that the tax authorities, having discovered an overpayment of personal income tax for the parent organization and arrears for separate subdivisions from a tax agent, must themselves offset the tax based on the results of the tax period (see, for example, Resolution of the FAS SZO dated 31.01.2014 No. F07-10789 / 2013 in case No. A56-72308 / 2012).

At the same time, it would be unfair on our part to keep silent about the existence of court decisions in which the arbitrators indicate that to correct the error in the distribution of personal income tax between the budgets, which arose as a result of the incorrect execution of payment orders for the transfer of personal income tax, withheld when paying income to employees of separate divisions, on tax agents, can any of the interested parties (including withholding agent) (see, for example, Resolution of the CA MO dated 06.10.2015 No. F05-13213 / 2015 in case No. A41-43272 / 14).

From this year on, the issues of payment and collection of insurance contributions for compulsory pension insurance, compulsory social insurance in case of temporary disability and in connection with maternity, for compulsory health insurance are regulated by the Tax Code of the Russian Federation.

A separate subdivision of an organization for tax purposes is any subdivision geographically separate from it, at the location of which stationary workplaces are equipped (clause 2 of article 11 of the Tax Code of the Russian Federation). That is, two circumstances testify to the existence of a separate subdivision.

First, its address differs from the address of the organization indicated (letter of the Ministry of Finance of Russia dated 18.08.2015 No. 03-02-07 / 1/47702). Second, at the location of the separate subdivision, at least one stationary workplace for more than a month. The equipment of a stationary workplace means the creation of all the necessary for execution job responsibilities conditions, as well as the very fulfillment of such obligations (letter of the Ministry of Finance of Russia dated June 14, 2016 No. 03-02-07 / 1/36019).

It is important that the premises (facility, territory) where the workplace is located are under the control of the organization. It must have the right to own or use it (Article 209 of the Labor Code of the Russian Federation, letters of the Ministry of Finance of Russia dated 05.10.2012 No. 03-02-07 / 1-238, dated 03.02.2012 No. 03-02-07 / 1-30).

Registration of a separate subdivision

Organizations that include separate subdivisions located on the territory of the Russian Federation are subject to placement at the location of each of their separate subdivisions (clause 1 of article 83 of the Tax Code of the Russian Federation). At the same time, it has no legal significance for registration:

work organization form ( shift method or a business trip);
the period of stay of a particular employee at a stationary workplace created by the organization.

For the purposes of registration, the location of a separate subdivision of an organization is the place where its activities are carried out, in particular, determined by the address.

Payment and reporting of insurance premiums

From 01.01.2017 in accordance with Tax Code RF and organizations should submit payments on contributions both at their location and at the location of separate subdivisions, if the subdivisions are located on the territory of the Russian Federation and accrue payments and other remuneration in favor of individuals (clause 11 of Article 431 of the Tax Code of the Russian Federation). This applies, inter alia, to separate divisions that were empowered to accrue remuneration in favor of individuals before January 1, 2017.

In this case, at the location of the separate subdivision, contributions should be paid based on the taxable base relating to this separate subdivision. And the amount of contributions payable at the location of the organization will be determined as the difference between the amount of contributions payable for the organization as a whole and the total amount of contributions payable at the location of the separate divisions (clauses 12, 13 of article 431 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated September 14 .2016 No. BS-4-11 / 17201).

Exception from general rule- payment of fees and reporting at the location of the organization - possible in the following cases.

A separate subdivision of the organization is located outside the Russian Federation. Then the contributions on it should be transferred at the location of the organization (clause 14 of article 431 of the Tax Code of the Russian Federation).

The organization independently calculates remuneration in favor of all employees, including in favor of employees of separate divisions. Moreover, if, before the transition to centralized payment of contributions, such an organization had separate divisions that accrued payments in favor of individuals, including before January 1, 2017, then the organization must be notified tax office on the deprivation of all separate divisions of the authority to calculate payments and other remuneration in favor of individuals.

Separate subdivisions insurance premiums since 2017 year, according to the rules of the Tax Code of the Russian Federation, are obliged to pay and submit reports on them, if such structural units accrue and pay salaries. Consider the legislative innovations associated with the payment of contributions by separate structures.

The provisions of which documents are subordinated to reporting and payment of contributions by divisions in 2017

Since 2017, the main part of the insurance premiums payable to employees has been controlled by the tax authorities and has begun to comply with the provisions of the Tax Code of the Russian Federation. These changes did not affect only the "unfortunate" contributions, which are still levied under the law "On compulsory social insurance ..." dated 07.24.1998 No. 125-FZ and supervised by social insurance. That is, for separate divisions insurance premiums since 2017 years are governed by 2 main documents containing provisions that have both similarities and differences in their application.

Regarding the separate structural units for contributions regulated by the Tax Code of the Russian Federation, the following rules apply:

1. Submission of reports on contributions and their payment are mandatory for all separate structures that calculate and issue wages, except for those located abroad (clauses 7 and 11 of article 431 of the Tax Code of the Russian Federation).

2. The amount of contributions for each of the divisions is calculated from the base for their accrual, which is related to this structural unit (clause 12 of article 431 of the Tax Code of the Russian Federation), and for the head structure is determined as the difference between the amount of contributions for the legal entity as a whole and the amounts, accrued for all its separate units (clause 13 of article 431 of the Tax Code of the Russian Federation).

3. There is an obligation to inform the IFRS at the place of registration of the legal entity that its separate structure will calculate and issue wages (subclause 7, clause 3.4, article 23 of the Tax Code of the Russian Federation).

Information about the presence of a legal entity of separate structures, which until 01.01.2017 made the payment of contributions and the formation of reports, was sent to the IFTS during the first month of 2017 by the FIU. Therefore, a legal entity that does not change anything in the powers of its structural units may not make any messages to the IFTS. However, on the border date 01/01/2017, it is possible to create situations that require the submission of a notification there in accordance with the requirements of sub. 7 clause 3.4 of Art. 23 of the Tax Code of the Russian Federation:

paid before this date by separate subdivision insurance premiums since 2017 year, it was decided to pay centrally in connection with the deprivation of this structure of the right to calculate and issue wages;
since 2017, a separate entity has been delegated the right to calculate and issue wages.

In terms of contributions that are subject to Law 125-FZ, a separate structure does not acquire the obligation to pay them and submit appropriate reports, but can become an insured paying contributions and submitting reports on them, if, according to sub. 2 p. 1 art. 6 and clause 11 of Art. 22.1:

it is not abroad;
it has its own checking account;
it calculates and issues wages;
a legal entity has submitted an application for the separation of this structure as an insured.

The amounts of contributions related to each of the separate units and to the parent structure are calculated according to the same rules as for contributions regulated by the Tax Code of the Russian Federation (clauses 12, 13, article 22.1 of Law 125-FZ).

Where contributions are paid and reporting on segregations: special cases

Both of the above documents (Tax Code of the Russian Federation and Law 125-FZ) introduce a special rule for structural units located outside the borders of the Russian Federation. The legal entity submits reports on them and pays contributions at the location of the head structure (clause 14 of article 431 of the Tax Code of the Russian Federation, clause 14 of article 22.1 of Law 125-FZ).

The largest taxpayers, focusing on paragraph 3 of Art. 80 of the Tax Code of the Russian Federation, which requires all their tax reporting to be submitted at the place of registration as the largest, it should be borne in mind that this requirement has nothing to do with reports on insurance premiums. Therefore, this kind of reporting will have to be submitted to the largest taxpayers in the same way as to all other insured: in the locations of the legal entity itself and its separate structures (letters of the Ministry of Finance of Russia dated 02.28.2017 No. 03-15-06 / 11252, dated 03.02.2017 No. 03- 15-06 / 5796, dated 30.01.2017 No. 03-15-06 / 4424).

Outcomes

Since 2017, the provisions valid for insurance premiums are regulated by 2 documents: the Tax Code of the Russian Federation (for most of their types) and the Law 125-FZ (for “unfortunate” contributions). The main condition for paying contributions and filing reports on them by a separate division is that it calculates and issues wages. According to the Tax Code of the Russian Federation, this circumstance leads to the obligation to separate payments and reporting for the subdivision, and according to Law 125-FZ it can serve as one of the grounds for registering a subdivision as an insured, paying contributions and reporting on them.

How will an organization with separate subdivisions be obliged to calculate and pay insurance premiums from January 1, 2017?

Until January 1, 2017, the issues of payment of insurance contributions are governed by the provisions of the Federal Law of July 24, 2009 No. 212-FZ "On Insurance Contributions to the Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund "(hereinafter - Law No. 212-FZ). According to Part 11 of Art. 15 of Law No. 212-FZ, it is necessary to transfer insurance premiums and submit reports on them at the location of a separate unit if it makes payments and other remuneration in favor of individuals, has a current account and a separate balance sheet. Accordingly, the registration of an organization with the territorial bodies of the PFR and the FSS of Russia at the location of a separate subdivision is carried out only when all of the above conditions are met in relation to it (subparagraph 1, clause 3 of the Procedure for registration and deregistration in the territorial bodies of the FSS of Russia of policyholders - legal entities at the location of separate subdivisions and individuals, approved by order of the Ministry of Labor of Russia dated April 29, 2016 No. 202n, clause 12 of the Procedure for registration and deregistration of policyholders making payments to individuals in the territorial bodies of the PFR, approved by the resolution of the PFR Board of 13.10.2008 No. 296p). If at least one of these conditions is not met, registration at the location of a separate subdivision is not made, and fees must be paid, as well as reports must be submitted at the location of the organization (letters of the Ministry of Health and Social Development of Russia dated 09.03.2010 No. 492-19, FSS of Russia dated 05.05 .2010 No. 02-03-09 / 08-894p).

The amount of insurance premiums to be transferred at the location of a separate subdivision is determined based on the base for calculating insurance premiums related to this separate subdivision (part 12 of article 15 of Law No. 212-FZ). At the location of the organization, the difference between the total amount of insurance premiums payable by the organization as a whole and the total amount of insurance premiums transferred to the location of the separate divisions is transferred (part 13 of article 15 of Law No. 212-FZ).

From January 1, 2017, the procedure for calculating and paying insurance premiums to the Pension Fund of the Russian Federation, FFOMS and the FSS of Russia in terms of compulsory insurance in case of temporary disability and in connection with maternity will be regulated by tax legislation. The corresponding changes in the Tax Code of the Russian Federation were introduced by Federal Law No. 243-FZ dated 03.07.2016 (hereinafter - Law No. 243-FZ).

The new rules are somewhat different from the current procedure provided for by Law No. 212-FZ.

According to the current edition of sub. 3 p. 2 art. 23 of the Tax Code of the Russian Federation, organizations must report to tax authority at the place of its registration on the creation of separate divisions and changes in the previously provided information about them. In a letter dated September 14, 2016 No. BS-4-11 / 17201, the tax authorities indicated that companies will have one more obligation related to stand-alone units... They will have to inform the tax authorities about those divisions that are empowered to calculate payments and remunerations in favor of individuals. This will need to be done within one month from the day the unit receives the appropriate powers (subclause 7, clause 3.4, article 23 of the Tax Code of the Russian Federation). Please note that it is necessary to submit a message only in relation to those units that were empowered to calculate payments and remuneration in favor of individuals after January 1, 2017 (clause 2 of article 5 of Law No. 243-FZ).

It will be necessary to pay insurance premiums and submit calculations both at the location of the organization and at the location of separate divisions that charge payments and other remuneration in favor of individuals (clause 11 of article 431 of the Tax Code of the Russian Federation). The procedure for determining the amount of insurance premiums to be transferred at the location of a separate subdivision and the location of the organization, established by paragraphs 13 and 14 of Art. 431 of the Tax Code of the Russian Federation, is similar to the procedure given in parts 12 and 13 of Art. 15 of Law No. 212-FZ.

The tax authorities also noted that in accordance with paragraph 1 of Art. 34.2 of the Tax Code of the Russian Federation, written explanations on the calculation and payment of insurance premiums from January 1, 2017 will be given by the Ministry of Finance of Russia.

Let's consider how the change in the rules will affect companies that already have separate divisions in their composition.

If a separate subdivision makes payments and remuneration in favor of individuals, has a current account and a separate balance, then from January 1, 2017, the procedure for calculating and paying insurance premiums in relation to such a subdivision will not change. Only the details of the accounts to which you need to transfer contributions will change. You do not need to submit any messages to the tax authority about this unit.

In the case when a separate subdivision pays remuneration to individuals, but does not have a current account and (or) is not allocated to a separate balance, the procedure for calculating and paying insurance premiums will change. Contributions related to payments made by such a unit will need to be listed and reported at its location. It is not necessary to inform the tax authorities about the empowerment of the subdivision to calculate payments and remuneration in favor of individuals.

If a separate subdivision does not make payments and remuneration in favor of individuals, it will be necessary to pay contributions and submit reports on them in the same way as now - at the location of the organization.

First, its address differs from the address of the organization indicated in the Unified State Register of Legal Entities (letter of the Ministry of Finance of Russia dated 18.08.2015 No. 03-02-07 / 1/47702). Second, at the location of the separate subdivision, at least one stationary workplace is equipped for a period of more than a month. The equipment of a stationary workplace means the creation of all the conditions necessary for the performance of labor duties, as well as the very fulfillment of such duties (letter of the Ministry of Finance of Russia dated June 14, 2016 No. 03-02-07 / 1/36019).

Registration of a separate subdivision

Organizations that include separate subdivisions located on the territory of the Russian Federation are subject to registration with the tax inspectorate at the location of each of their separate subdivisions (clause 1 of article 83 of the Tax Code of the Russian Federation). At the same time, for registration it has no legal significance:

the form of work organization (rotational method or business trip);
the period of stay of a particular employee at a stationary workplace created by the organization.

For the purposes of registration, the location of a separate subdivision of an organization is the place where its activities are carried out, in particular, determined by the address.

Payment and reporting of insurance premiums

From 01.01.2017, organizations should pay insurance premiums in accordance with the Tax Code of the Russian Federation and submit payments for contributions both at their location and at the location of separate divisions, if the divisions are located in the Russian Federation and accrue payments and other remuneration in favor of individuals (Clause 11, Article 431 of the Tax Code of the Russian Federation). This applies, inter alia, to separate divisions that were empowered to accrue remuneration in favor of individuals before January 1, 2017.

An exception to the general rule - payment of contributions and reporting at the location of the organization - is possible in the following cases.

The organization independently calculates remuneration in favor of all employees, including in favor of employees of separate divisions. At the same time, if, before the transition to centralized payment of contributions, such an organization had separate divisions that accrued payments in favor of individuals, including before January 1, 2017, then the organization must notify the tax office of the deprivation of all separate divisions of the authority to calculate payments and other remunerations. in favor of individuals.