What is meant by ensuring the functioning of a permanent establishment. Establishment of a permanent establishment: tax aspect. Permanent representation in world practice

1. The provisions of Articles 306 - of this Code establish the specifics of tax calculation by foreign organizations engaged in entrepreneurial activities in the territory Russian Federation, if such activity creates a permanent representative office of a foreign organization, as well as the calculation of tax by foreign organizations that are not associated with activities through a permanent representative office in the Russian Federation, receiving income from sources in the Russian Federation.

2. For the purposes of this chapter, a permanent establishment of a foreign organization in the Russian Federation means a branch, representative office, branch, bureau, office, agency, any other separate subdivision or other place of activity of this organization (hereinafter in this chapter - a branch), through which the organization regularly carries out business activities on the territory of the Russian Federation related to:

subsoil use and (or) use of other natural resources;

carrying out the construction, installation, assembly, assembly, adjustment, maintenance and operation of equipment, including slot machines, as provided for by the contracts;

sale of goods from warehouses located on the territory of the Russian Federation and belonging to this organization or leased by it;

the performance of other works, the provision of services, the conduct of other activities, with the exception of those provided for in paragraph 4 of this article.

For the purposes of this Code, the activity of a foreign organization on the territory of the Russian Federation is also recognized as the activity carried out by a foreign organization - the operator of a new offshore hydrocarbon field and related to the production of hydrocarbon raw materials at a new offshore hydrocarbon field.

3. A permanent representative office of a foreign organization is considered established from the beginning of regular implementation entrepreneurial activity through her branch. However, the activity of creating a branch does not in itself create a permanent establishment. A permanent representative office ceases to exist from the moment of termination of entrepreneurial activity through a branch of a foreign organization.

When using subsoil and (or) using other natural resources, a permanent representative office of a foreign organization is considered formed from the earlier of the following dates: the date of entry into force of the license (permit) certifying the right of this organization to carry out the relevant activity, or the date of actual commencement of such activity. If a foreign organization performs work, provides services to another person who has the specified license (permit) or acts as a general contractor for a person who has such a license (permit), when resolving issues related to the formation and termination of the existence of a permanent representative office of this foreign organization, the procedure similar to that established by paragraphs 2-4 of Article 308 of this Code is applied.

4. The fact that a foreign organization carries out activities of a preparatory and auxiliary nature on the territory of the Russian Federation in the absence of signs of a permanent representative office, provided for in paragraph 2 of this article, cannot be considered as leading to the formation of a permanent representative office. Preparatory and support activities include, in particular:

1) the use of facilities solely for the purpose of storage, demonstration and (or) delivery of goods belonging to this foreign organization, prior to the start of such delivery;

(see text in previous edition)

(see text in previous edition)

5. The fact that a foreign organization owns securities, shares in the capital of Russian organizations, as well as other property on the territory of the Russian Federation, in the absence of signs of a permanent establishment provided for in paragraph 2 of this article, cannot in itself be considered for such a foreign organization as leading to the formation of a permanent representative offices in the Russian Federation.

The fact that the manager of the foreign investment fund (company) specified in paragraph 14 of Article 25.13 of this Code, as well as the persons hired by him, their employees and (or) representatives, performs the functions of managing the assets of such a fund (company) on the territory of the Russian Federation and the fact that the functions are performed referred to in paragraph 3 of Article 246.2 of this Code, in relation to a fund or organizations (structures without forming a legal entity) in which such a fund (company) directly or indirectly participates, as well as other activities directly related to the implementation of these functions, by themselves cannot be considered as leading to the formation of a permanent representative office in the Russian Federation of the specified fund (company), foreign organizations (structures without forming a legal entity) in which such a fund (company) directly or indirectly participates, and (or) direct or indirect shareholders (participants , shareholders, partners) of the specified fund (company).

6. The fact that a foreign organization concludes a simple partnership agreement or another agreement that involves joint activities of its parties (participants), carried out in whole or in part on the territory of the Russian Federation, cannot in itself be considered for this organization as leading to the formation of a permanent representative office in the Russian Federation.

7. The fact that a foreign organization sends its employees to work in the territory of the Russian Federation or other territory under the jurisdiction of the Russian Federation, in another organization under an agreement on the provision of labor of employees (personnel) in the absence of signs of a permanent establishment provided for in paragraph 2 of this article, cannot be considered as a fact leading to the formation of a permanent establishment of a foreign organization that sent its employees, if such employees act solely on behalf of and in the interests of the organization to which they were sent.

(see text in previous edition)

8. Carrying out by a foreign organization of operations for the import into the Russian Federation or export from the Russian Federation of goods, including under foreign trade contracts, in the absence of signs of a permanent representative office, provided for in paragraph 2 of this article, cannot be considered as leading to the formation of a permanent representative office of this organization in Russian Federation.

(see text in previous edition)

9. A foreign organization is considered as having a permanent establishment if this organization supplies from the territory of the Russian Federation goods belonging to it, obtained as a result of processing in customs territory or under customs control, as well as if this organization carries out activities that meet the criteria provided for in paragraph 2 of this article, through a person who, on the basis of contractual relations with this foreign organization, represents its interests in the Russian Federation, acts on the territory of the Russian Federation from on behalf of this foreign organization, has and regularly uses the authority to conclude contracts or agree on their essential terms on behalf of this organization, while creating legal consequences for this foreign organization (dependent agent).

(see text in previous edition)

The activities of a foreign organization do not lead to the formation of a permanent representative office in the Russian Federation if such an organization operates in the Russian Federation through a broker, commission agent, manager of a foreign investment fund (company) specified in paragraph 14 of Article 25.13 of this Code, a professional participant in the Russian market valuable papers or any other person acting in the framework of their main (usual) activities.

(see text in previous edition)

10. The fact that a person carrying out activities on the territory of the Russian Federation is interdependent with a foreign organization, in the absence of signs of a dependent agent, provided for in paragraph 9 of this article, is not considered as leading to the formation of a permanent representative office of this foreign organization in the Russian Federation.

11. Activities of UEFA (Union of European Football Associations) and UEFA subsidiaries in the period up to December 31, 2020 inclusive, FIFA (Federation Internationale de Football Association) and FIFA subsidiaries specified in the Federal Law "On the preparation and holding of the championship in the Russian Federation 2018 FIFA World Cup, 2017 FIFA Confederations Cup, 2020 UEFA European Football Championship and amending certain legislative acts of the Russian Federation" and being foreign organizations

(see text in previous edition)

12. Activities carried out in the Russian Federation by confederations, national football associations, FIFA (Federation Internationale de Football Association) media information producers, suppliers of goods (works, services) FIFA, commercial partners of UEFA, suppliers of goods (works, services) UEFA, defined by the Federal Law "On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup, the 2020 UEFA European Football Championship and amending certain legislative acts of the Russian Federation", established, registered or based outside the territory of the Russian Federation , in connection with the implementation of the measures provided for by the said Federal Law, does not lead to the formation of a permanent representation of these organizations in the Russian Federation.

(see text in previous edition)

13. Carried out on the territory of the Russian Federation under an agreement with FIFA (Federation Internationale de Football Association) or UEFA (Union of European Football Associations), subsidiaries FIFA activities of FIFA broadcasters and UEFA broadcasters defined by the Federal Law "On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup, the 2020 UEFA European Football Championship and amending certain legislative acts of the Russian Federation" , established, registered or based outside the territory of the Russian Federation, in connection with the implementation of the measures provided for by the said Federal Law, does not lead to the formation of a permanent representative office of these organizations in the Russian Federation.

(see text in previous edition)

14. The provision by a foreign organization of the services specified in paragraph 1 of Article 174.2 of this Code, the place of sale of which is the territory of the Russian Federation, does not lead to the formation of a permanent representative office of this organization in the Russian Federation.

15. The fact that on the territory of the Russian Federation a foreign organization specified in subparagraph 4 of paragraph 6 of Article 246.2 of this Code, as well as persons hired by it, its employees and (or) representatives of the functions of managing such an organization, its activities related to the operation of sea vessels, ships of mixed (river - sea) navigation, aircraft and (or) activities for the international transportation of goods, passengers and their luggage and for the provision of other services related to the implementation of these transportations, cannot in itself be considered as a fact leading to the formation of a permanent representative office in the Russian Federation of the specified foreign organization, foreign organizations, in which directly or indirectly participates such an organization, and (or) direct or indirect shareholders (participants, shareholders, partners) of this organization.

It is necessary to pay and/or calculate the tax of a foreign organization when doing business in Russia through its permanent establishment or when doing business that is related to making profit from Russian sources. However, the term permanent establishment» According to the norms of tax law, it is not connected with the representation of a foreign company in the civil law sense, since in the tax sense, neither provisions on representation nor accreditation are needed for the establishment of a permanent establishment.

According to paragraph 2 of Article 306 of the Russian Tax Code, permanent establishment of a foreign company- representative office, branch, office, branch, agency, office, other separate subdivision, or place of business through which this company constantly conducts its business in Russia.

In accordance with paragraph 5 of Article 306 of the Russian Tax Code, the fact that a foreign company owns shares in the capital of Russian organizations, securities and / or property on the territory of the Russian Federation does not lead to the formation of a permanent representative office in the Russian Federation, provided that there are no signs of a permanent representative office. Paragraph 4 of the same article states that the conduct of auxiliary or preparatory activities by a foreign organization does not entail the emergence of a permanent establishment.

Signs of the emergence of a permanent representative office of a foreign company in Russia:

1. Separate division or place of business.
2. Regular conduct of activities in accordance with subparagraph 1.1 of paragraph 2 of the Regulations on the peculiarities of accounting for foreign organizations in the tax authorities, which is Appendix No. 1 to the Order of the Ministry of Taxes of the Russian Federation dated April 7, 2000 No. AP-3-06 / 124(hereinafter simply the Regulations), which states that this concept means conducting activities for more than 30 days a year.
3. The activity is carried out on an entrepreneurial basis. This feature is disclosed in paragraph 3 of paragraph 1 of Article 2 of the Civil Code of Russia, where it is said that this is an activity that meets a number of characteristics:

• Independent activity.
• Activities carried out at your own risk.
• An activity that is aimed at generating income from the sale of goods, the use of property and the performance of work, the provision of services.

To create a permanent establishment foreign company is not obliged to conduct activities with the help of its employees. In accordance with paragraph 9 of Article 306 of the Tax Code, a foreign company has a permanent establishment in the event that this company conducts business through a person representing it in Russia on the basis of contractual relations with it, acts in Russia on behalf of this company, regularly uses the available powers to conclude contracts or agree on their main conditions on behalf of the company, while creating consequences for the foreign company (i.e. dependent agent).

According to subparagraph 1 of paragraph 2 of the Regulations, the emergence of an obligation to register with the tax authorities of Russia is possible if two criteria: place of business, plus, the regularity of the activity. This is because normative act registration and the emergence of tax obligations in the Russian Federation are in no way connected.

If a foreign company has an account with a Russian bank, this also does not entail the emergence of a permanent establishment, but indicates the need for the foreign company to be registered with the Russian tax authority at the place of registration of the banking institution where the company has an account. The procedure for tax registration of a foreign company in order to open an account with a Russian bank is given in subparagraph 1 of paragraph 3 of the Order of the Ministry of Taxation of Russia dated April 7, 2000 No. AP-3-06 / 124 "On approval of the Regulations on the peculiarities of accounting for foreign organizations with tax authorities". Based on this, it can also be noted that managing an account through Internet banking does not affect the establishment of a permanent establishment.

Conclusions:

1. When using offshore companies or foreign companies, you need to be very careful so that these companies do not "accidentally" have a permanent establishment in Russia.
2. In order to use foreign and offshore companies in tax optimization in Russia in particular and in the CIS countries in general, it is necessary to consult with both international tax professionals and local tax consultants in Russia and the CIS. As part of our consultations, we can offer you invaluable ideas that you can bring to life with the help of your accountant and local tax consultant.

In order to fully appreciate the pros and cons of the decision to establish a permanent establishment, it is necessary to determine the tax consequences of its occurrence. One of the signs of the formation of a permanent representative office is the implementation by a foreign organization of commercial activities on an ongoing basis. However, Russian tax legislation provides for a number of cases when a permanent establishment is not formed in the course of a foreign company's activities. These include intermediary activities, which do not always involve the creation of a permanent establishment in the tax sense. As long as a foreign organization operates on the territory of the Russian Federation without forming a permanent representative office, tax jurisdiction does not fully apply to it.

Publication

Determining the Status of a Permanent Establishment

In the Russian Federation, the profit of a foreign company is taxed only if the profit is received as a result of the company's activities through a permanent establishment, and only to the extent that is directly related to the permanent establishment. Until the moment when a foreign person has a permanent establishment, this person cannot be considered as participating in the economic life of the country to the extent that it falls under its unlimited tax jurisdiction 1 .

The qualification of the activities of a foreign company as forming or not forming a permanent establishment is determined by:

the position of the Ministry of Finance of Russia as the competent authority for clarifying the provisions of agreements on the avoidance of double taxation, including on the formation of a permanent representative office;

position of controlling tax authorities;

the position of the Supreme Arbitration Court of the Russian Federation, which ensures the uniformity of judicial practice, as well as the federal arbitration courts of the districts, which review the decisions of the courts of the first and appellate instances that have entered into legal force and form judicial practice 2 .

A permanent establishment of a foreign company means a branch, representative office, department, bureau, office, agency, any other separate subdivision or other place of business through which the organization regularly carries out business activities in Russia related to:

use of subsoil and/or other natural resources;

carrying out works on construction, installation, installation, assembly, maintenance and operation of equipment;

sale of goods from Russian territory warehouses;

the implementation of other works, the provision of services, the conduct of other activities.

The Tax Code of the Russian Federation defines three main features of a permanent establishment (Article 306 of the Tax Code of the Russian Federation):

the presence of a separate subdivision or other place of activity on the territory of the Russian Federation;

implementation by a foreign organization of entrepreneurial activity on the territory of the Russian Federation;

carrying out such activities on a regular basis.

There is no definition of the concept “place of business” in Russian legislation. The OECD 3 Model Convention defines a place of business as any premises, facilities or installations used to carry on a business. And it does not matter whether they are owned by the company or rented. It can also be any space, without premises: a representative of a foreign company holds meetings, concludes contracts, negotiates essential conditions, and all this in itself already creates a place of activity. In addition, the place of business may be located in another enterprise, where the foreign company has certain premises at its permanent disposal. Any form of presence of a foreign company in another country can be recognized as a permanent place of business.

The following situation is given as an example in the Commentaries to the OECD Model Convention. A foreign company sends its employee to another country to a counterparty firm. An employee lives abroad for a long time, works in the counterparty's office, monitors the fulfillment of his obligations, and resolves issues related to the execution of contracts on the spot. Although the seconded employee uses someone else's office, nevertheless, the latter can be considered a permanent establishment for tax purposes, since the company has a "fixed place of business" in another country.

The definition of entrepreneurial activity is given in Civil Code Russian Federation: entrepreneurial is an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (part 3, clause 1, article 2 Civil Code of the Russian Federation).

The third sign of a permanent establishment in accordance with the Tax Code of the Russian Federation is the implementation of entrepreneurial activities on a regular basis. This means the following: if a company carries out or intends to carry out activities on the territory of the Russian Federation for a period exceeding 30 calendar days continuously or collectively in a year, this implies that it is obliged to register with the tax authority at the place of business 4 .

Thus, the activity of a foreign company leads to the formation of a permanent establishment with the simultaneous presence of these features.

A foreign company will be considered as having a permanent establishment if it:

carries out deliveries through a person who, on the basis of contractual relations with this foreign organization, represents its interests in the Russian Federation;

acts on the territory of the Russian Federation on its behalf;

has and regularly uses the authority to conclude contracts and agree on essential conditions (contract price and delivery terms), creating legal consequences for a foreign organization (dependent agent) (clause 9, article 306 of the Tax Code of the Russian Federation).

If such criteria are met, the activities of a foreign company lead to the formation of a permanent establishment. In this case, the company is obliged to register with the tax authorities of the Russian Federation.

International tax aspect

It should be borne in mind that if there is an agreement on the avoidance of double taxation between the Russian Federation and the country of incorporation of the company, then the rules of this agreement should be applied, since they take precedence over the norms of national legislation (Article 7 of the Tax Code of the Russian Federation). In addition, as a rule, international treaties on the avoidance of double taxation provide for more favorable taxation regimes than local legislation 6 .

If there is no agreement on the avoidance of double taxation, then when taxing such a permanent establishment, one should be guided by the rules of the current Russian legislation(Chapter 25 of the Tax Code of the Russian Federation “Income Tax”).

Avoidance agreements apply to taxes such as income tax, property tax, capital gains tax, personal income tax. The exceptions are the indirect VAT tax and the land tax, which is local.

Tax reporting of a foreign organization

Any permanent establishment, having registered in the territory of the Russian Federation, is obliged to comply with the laws regarding the mandatory maintenance accounting 7 and keep tax records in accordance with Ch. 25 of the Tax Code of the Russian Federation. To do this, an accounting policy 8 should be developed.

There is one exception for accounting: if a foreign organization keeps records in accordance with international standards financial reporting(hereinafter - IFRS), which are approved by the IASB, then it may be exempted from accounting in accordance with Russian rules. To do this, you must inform the tax authorities that the company plans to keep records under IFRS.

Concerning tax accounting, there are no exceptions here. If it is supposed to pay income tax, an accounting policy must be prescribed, which will be applied in the future.

income tax

If a foreign company conducts activities in Russia leading to the establishment of a permanent establishment, it is liable to pay income tax. In accordance with Ch. 25 of the Tax Code of the Russian Federation, foreign organizations are taxpayers (Article 246 of the Tax Code of the Russian Federation).
The objects of taxation of such companies are listed below:

income received from the implementation of entrepreneurial activities in the territory of Russia through a permanent establishment, less expenses incurred by this permanent establishment;

income from the possession, use and disposal of the property of a permanent establishment, net of expenses associated with the receipt of such income (depreciation, communal payments etc.);

other income from sources in Russia related to a permanent establishment (for example, holding securities and receiving dividends on them).

The procedure for calculating the tax base of a permanent representative office of a foreign organization is carried out in accordance with Art. 307 of the Tax Code of the Russian Federation 9 .
The tax period is a calendar year, the reporting period is a quarter, half a year, 9 months (Article 285 of the Tax Code of the Russian Federation).

The reporting form (Article 289 of the Tax Code of the Russian Federation) is a tax return on income tax 10 , as well as a tax calculation on the amounts of income paid to foreign organizations and taxes withheld 11 . The reporting deadline is the 28th of the next month following the results of the reporting period, as well as March 28 of the next year following the results of the tax period (Article 289 of the Tax Code of the Russian Federation).

A foreign organization has the right to take into account for tax purposes the expenses incurred only if it receives income from entrepreneurial activities in the Russian Federation through a permanent establishment recognized for tax purposes. If there is no entrepreneurial activity, the foreign company is not recognized as a permanent establishment for tax purposes and has no right to account for expenses in Russia.

The presence or absence of a permanent establishment for tax purposes is determined by the taxpayer independently. If he has difficulty determining this status, a request should be made to tax office.

If a foreign company does not form a permanent establishment on the territory of the Russian Federation, but receives relevant income from sources in Russia, such as dividends, interest on borrowed funds, income from the sale of real estate, from the lease of property, fines and penalties for violation of the terms of contracts, etc. (clause 1 of article 309 of the Tax Code of the Russian Federation), in this case, the foreign company is recognized as a payer of income tax. But at the same time, the income tax will be withheld by the tax agent (the company that pays this income) 12 .

The tax agent is obliged to withhold income tax at the appropriate rate (Article 310 of the Tax Code of the Russian Federation) and transfer it to the budget 13 . And at the end of the reporting period, submit a declaration to the tax service.

Accordingly, a foreign organization that does not operate in Russia will receive the amount under the agreement (contract) minus the relevant tax.

value added tax

If we consider a foreign company that has a permanent establishment in Russia, then it will also be recognized as a taxpayer (Article 143 of the Tax Code of the Russian Federation) for VAT and pay this tax in the manner and terms (Article 174 of the Tax Code of the Russian Federation) that are established for ordinary Russian organizations .

If a company pays VAT in Russia on the cost of work or services rendered, then it, accordingly, has the right to deduct the corresponding amounts of taxes on purchased goods, work, services, report to the tax office 14 and pay the corresponding amount to the budget.

If income is paid to a foreigner who does not operate in Russia but cannot pay it himself, VAT must be withheld by the tax agent from the income paid to the foreigner.

The tax agent informs the tax service about the income paid to foreigners and about the VAT amounts withheld.

Property tax

The object of property taxation for foreign companies is both immovable and movable property related to fixed assets (Article 374 of the Tax Code of the Russian Federation). It all depends on the tax status of the foreign company (Article 373 of the Tax Code of the Russian Federation).
If a foreign company establishes a permanent establishment for tax purposes in Russia, it will pay property tax on both immovable and movable property.

If the company does not form a permanent establishment for tax purposes, no property tax is payable on movable property. But if there is real estate in the property, then the company becomes a payer of property tax (Article 379 of the Tax Code of the Russian Federation).

The tax period is a calendar year, the reporting period is a quarter, half a year, 9 months (Article 379 of the Tax Code of the Russian Federation). At the end of each reporting and tax period, taxpayers are required to submit reports to the tax authorities (Article 235 of the Tax Code of the Russian Federation).

Unified social tax

A foreign company will pay the UST through its permanent establishment if it has employees with whom labor contracts have been concluded (Article 235 of the Tax Code of the Russian Federation).

Payments accrued to a foreign worker working under employment contract, are subject to UST regardless of the status of the employee (permanently or temporarily residing in Russia), the place of conclusion of the contract, and also regardless of where the payments are accrued and made (abroad or in the territory of the Russian Federation) 15 .

The tax is levied on payments and other remuneration accrued in favor of individuals on labor and civil law contracts (Article 236 of the Tax Code of the Russian Federation).
Tax and reporting periods(Article 240 of the Tax Code of the Russian Federation), rate, tax return (Article 243 of the Tax Code of the Russian Federation), reporting deadlines (Article 243 of the Tax Code of the Russian Federation) - all this corresponds to the order that ordinary Russian taxpayers work with.

Personal Income Tax

A foreign company is obliged to withhold personal income tax in cases where it pays income to individuals (Article 207 of the Tax Code of the Russian Federation). The tax rate depends on the residency of an individual. A resident is a person who stays on the territory of the Russian Federation for at least 183 calendar days during the next 12 months in a row. For a resident, a tax is withheld at a rate of 13%, for a non-resident - 30% (Article 224 of the Tax Code of the Russian Federation).

A permanent establishment, regardless of its status, acts as a tax agent in respect of payments in favor of such individuals.

The object of taxation is income received by taxpayers from sources in the Russian Federation from sources outside the Russian Federation - for individuals who are tax residents, and from sources in the Russian Federation - for individuals who are not tax residents (Article 209 of the Tax Code of the Russian Federation).

The tax period is a calendar year (Article 216 of the Tax Code of the Russian Federation), the deadline for reporting (Article 230 of the Tax Code of the Russian Federation) is no later than April 01 of the year following the expired tax period (Article 230 of the Tax Code of the Russian Federation).

Land tax

Land tax is paid by a foreign organization if it acquires land(Article 389 of the Tax Code of the Russian Federation) on the right of ownership, the right of permanent (perpetual use) or the right of lifetime inheritable possession. In this case, the foreign company becomes a payer (Article 388 of the Tax Code of the Russian Federation) of the land tax.

Land tax is paid before February 01 of the year following the expired tax period (Article 398 of the Tax Code of the Russian Federation). Once a year, without advance payments (Article 393 of the Tax Code of the Russian Federation). Declaration is submitted 16 .

Transport tax

The object of taxation arises when a foreign company (Article 357 of the Tax Code of the Russian Federation) acquires ownership or takes possession of a vehicle (car, plane, yacht and other water or air vehicles) (Article 358 of the Tax Code of the Russian Federation).

There is an obligation to register the vehicle within 30 days from the date of purchase, receipt for use or disposal.
The tax is paid once a year (Article 360 ​​of the Tax Code of the Russian Federation) until February 01 of the year following the expired tax period (Article 363.1 of the Tax Code of the Russian Federation). Tax rates are determined by local law.

After the expiration of the tax period, taxpayers submit to the tax authority at the location Vehicle tax return on tax 17 .

Commercial activities of a foreign company without establishing a permanent establishment

The Tax Code of the Russian Federation provides for a number of cases when a permanent establishment is not formed when a foreign company conducts business in Russia:

possession of securities, shares in the capital of Russian organizations, as well as other property in the absence of other necessary signs of a permanent establishment (clause 5, article 306 of the Tax Code of the Russian Federation);

conclusion of a simple partnership agreement or other agreement involving joint activities of its parties, fully or partially carried out in the Russian Federation (clause 6 of article 306 of the Tax Code of the Russian Federation);

provision by a foreign organization of personnel to work in Russia in another organization in the absence of other signs of a permanent establishment (clause 7 of article 306 of the Tax Code of the Russian Federation);

carrying out operations for the import into our country or export from it of goods, including under foreign trade contracts, in the absence of other signs of a permanent establishment (clause 8 of article 306 of the Tax Code of the Russian Federation)

Also, the activities of a foreign company will not be considered as leading to the formation of a permanent establishment if it is carried out on the territory of the Russian Federation through a broker, commission agent, professional participant in the securities market or through any other person who acts in the framework of the usual main (ordinary) activity (an independent agent ) eighteen .

When determining the tax base for income tax, the commission agent does not take into account income in the form of property (including cash) received in connection with the fulfillment of obligations under a commission agreement, with the exception of a commission fee (subclause 9, clause 1, article 251 of the Tax Code of the Russian Federation). And everything acquired through transactions belongs to the committent (Article 996 of the Civil Code of the Russian Federation). The expenses incurred by the commission agent shall be reimbursed by the committent. Consequently, the profit from the transaction is not the profit of the commission agent, but the committent, which is subject to taxation under the laws of the country of incorporation.

Intermediary scheme for tax optimization

The activity of the committent may be recognized as leading to the formation of a permanent establishment and will be subject to taxation in Russia if the tax authorities can prove that the commission agent, acting under the commission agreement, has the right to negotiate the essential terms of contracts with buyers.

The risk of recognition of a permanent establishment will be minimized and no income tax liability will arise if the commission agent demonstrates that he has the authority to sign contracts, and all decisions are made by the committent, and the commission agent performs exclusively intermediary functions in relation to several partners (committents), and also its activities are basic and ordinary.

Thus, taking into account the provisions of art. 306 of the Tax Code of the Russian Federation, foreign companies can carry out their activities in Russia without forming a permanent establishment, and therefore may not have a tax status and not pay income tax.

1 Tax law/ Ed. S.G. Pepelyaev. M.: ID FBK-Press, 2000.
2 Ovcharova E.V., Travkina N.A. Permanent representative office of a foreign organization in Russia: arbitrage practice and optimization analysis // Glavbuh, January 18, 2007. URL: http://www.glavbuh.net.
3 Commentary on the OECD Model Convention with respect to taxes on income and on capital, Commentary on Article 5.
4 Clause 2.1.1. Regulations on the peculiarities of accounting in the tax authorities of foreign organizations, approved by the Order of the Ministry of Taxes of Russia dated 07.04.2000 No. AP-3-06 / 124.
5 Poputarovsky O., Kutyaeva O. International taxation: the benefits and risks of using agreements to avoid "double" taxes" // Bulletin of the Federal State Institution "State Registration Chamber under the Ministry of Justice of the Russian Federation", 2009, No. 5.
6 Timin E. How to choose the optimal form of work of a foreign company in Russia // Practical tax planning, 2008, No. 1.
7 Federal Law No. 129-FZ dated November 21, 1996 “On Accounting”; Regulation on accounting and financial reporting in the Russian Federation (Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n); Accounting policy for accounting purposes - PBU 1/98 "Accounting policy" (Order of the Ministry of Finance of Russia dated 09.12.1998 No. 60n).
8 Accounting policy for accounting purposes - PBU 1/98 "Accounting policy" (Order of the Ministry of Finance of Russia dated 09.12.1998 No. 60n).
9 Akilova E.V. Calculation of the tax base, calculation of the amount of tax payable by a permanent establishment // Taxes (newspaper), 2008, No. 3.
10 Order of the Ministry of Finance of Russia dated 05.05.2008 No. 54n “On Approval of the Form of the Tax Declaration on Corporate Income Tax and the Procedure for Filling It Out”.
11 Order of the MNF of Russia dated April 14, 2004 No. SAE-3-23/ [email protected]“On Approval of the Form of Tax Calculation (Information) on the Amounts of Income Paid to Foreign Organizations and Withheld Taxes”.
12 Potemina E.O. Performing the functions of a tax agent in relation to payments to a foreign organization on income not related to a permanent establishment // Accountant and law, 2008, No. 6.
13 Prikhodin S.A. Permanent representation of a foreign organization for income tax purposes (Article 306 of the Tax Code of the Russian Federation). Essential features // Website of the Legal Bureau "YURISTOKRAT", May 31, 2009. URL: http://www.ukrat.ru.
14 Order of the Ministry of Finance of Russia dated 07.11.2006 No. 136n “On Approval of the Value Added Tax Tax Return Form and the Procedure for Filling It Out”.
15 Perebeinos Yu.A. Tax features of permanent representative offices of foreign organizations // Accounting Bulletin, 2007, No. 9.
16 Order of the Ministry of Finance of Russia dated September 16, 2008 No. 95n “On Approval of Tax Declaration Forms and Tax Calculations for Advance Land Tax Payments and Procedures for Filling Them”.
17 Order of the Ministry of Finance of Russia dated April 13, 2006 No. 65n “On approval of the tax return form for transport tax and the procedure for filling it out”.
18 Sokolova I.N. Performing the functions of a tax agent in relation to payments to a foreign organization on income not related to a permanent establishment // Taxes (newspaper), 2006, No. 32.

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Developing Russian market is quite attractive for foreign enterprises, the purpose of which is the development and expansion outside their own country. Therefore, it is not unusual for management to decide to open a branch or representative office of a foreign company in Russia. At the same time, one of effective tools capable of improving the economic situation of any state is the policy of attracting foreign investment in its economy. But in order to carry out commercial activities in our country and invest their capital, foreign organizations need appropriate guarantees, including the scope of taxation. Legal status separate subdivisions foreign organization

The Russian state continues to work on improving the system legal regulation taxation, trying to take into account the interests of the budget, the interests of foreign organizations operating in Russia.

Establishing a representative office or branch of a company on the territory of Russia implies an independent active business of a foreign company - this approach should not be confused with passive investment in Russian organizations.

Control over the functioning of separate subdivisions of foreign companies in Russia is carried out in accordance with the provisions of the Federal Law "On Foreign Investments in the Russian Federation" dated July 9, 1999 No. 160-FZ. More precisely, the law applies exclusively to branches of foreign organizations.

It talks about the discovery in Russia ( commercial companies c) and branches, but nothing is said about the establishment of representative offices (because nothing is invested in the Russian economy). Accordingly, there is no definition of representation in the text of the law, and no legal regime is established for it, even in the case of accreditation.

Both a representative office and a branch are a separate subdivision of a legal entity that is located outside its location, only the duties of the first include representing the interests (and protecting them) of this legal entity, the task of the second is to perform the functions of this legal entity (or only a certain part of them) ) and its representatives.

Neither form is in itself a legal entity and has no legal capacity: their legal status will be governed by the law of the state in which the head office was registered. Separate subdivisions manage the property of the legal entity that founded them and operate in accordance with the provisions approved by it.

In other words, despite being located on the territory of the Russian Federation, representative offices and branches of foreign companies will be subject to the laws of the country where the parent organization is located in relation to:

• creation process,
• rights and obligations,
• schemes of work and its completion,
• rules for the appointment of management and the scope of its powers, etc.

However, before the unit begins to function at all, it will be necessary to obtain permission from the Russian authorities, that is, to pass accreditation. When representative offices or branches are accredited, they must also be registered with the Federal Tax Service in order to control their tax deductions to the Russian budget.

The legal status of a branch of a foreign company in the Russian Federation regulates all the most important issues related to this unit. It should reflect the main data on the features of the functioning of a branch in Russia that do not contradict the laws of the Russian Federation:

• full name (foreign parent company and the branch itself);
• organizational and legal form of management;
• branch location address;
• legal address of the head office;
• goals pursued by the management of the branch;
• activities;
• size, composition and time of capital investment;
• management rules.

Information about representative offices and branches of foreign organizations must be entered in the Consolidated State Register representative offices and branches of foreign companies accredited in the Russian Federation. Evidence of inclusion in the register is the presence of a corresponding certificate in the company's subdivision as a guarantee of confirmation of the official status of a foreign company on federal level, since without it it will be impossible to open a bank account, carry out transportation through customs and.

The optimal form of doing business by a foreign company in Russia

Forms of doing business in Russia by foreign organizations may be different. foreign Management Company must have a representative office or branch in Russia or do without it, for example, by hiring an individual resident of the Russian Federation, signing contracts directly with counterparties from Russia, etc.

There is also the option of opening a resident subsidiary and doing business through it. A competent choice of the form of business organization will help to avoid losses associated with the payment of taxes, the amounts of which could be lower, or the payment of which could have been avoided altogether.

General characteristics of branches and representative offices of foreign organizations in the Russian Federation are:

• exist in the form of a separate division separately from the parent company and operate in accordance with its norms;
• the parent company is responsible for financial plan for their actions;
• the management is empowered by the foreign parent company in the amounts prescribed in the power of attorney issued to them;
• use a share of the property of the parent company, accounted for separately from the company;
• do not have independent legal capacity, are not recognized as legal entities and act on behalf of the parent company;
• are created and liquidated by the decision of the head office;
• are not required to prepare financial statements.

Despite a large number of common points, a representative office and a branch are not the same thing. A branch of a foreign company has a wider list of functions compared to a representative office, since it has the authority not only to represent the interests of the company and protect them, but also to carry out the same business activities as the foreign founder.

Let's spend comparative analysis taxation various forms activities of a foreign organization.

Form of activity	VAT	income tax	UST	Property tax
Subsidiary	It is calculated on a general basis, you can choose the STS mode.	24% (you can choose the simplified tax system - 6%, 15%). The object of taxation is income received through branches in Russia (revenue and expenses incurred abroad but related to the work of the branch can be taken into account), minus the costs of these branches	Calculated on a general basis, you can choose the STS mode
Permanent establishment (branch, department, bureau, agency, office, etc.)	Calculated on a general basis, there are nuances regarding the taxation of services	0.24	Calculated on a general basis
No permanent establishment	The input is withheld by the tax agent from the income subject to VAT. Outgoing - 0%	Not withheld from business proceeds. In other cases, it is withheld by the tax agent (up to 20%)	No (the firm is not a taxpayer)

So, when choosing the optimal mode of operation, a foreign company should pay attention to the following points:

1. Resident subsidiaries pay all taxes at standard rates, however, they are entitled to apply a special tax regime. They also have the opportunity to use the possibilities of international tax planning.
2. Doing business without establishing a permanent establishment in Russia is suitable only for those companies whose work in the Russian Federation is episodic, since this form of business activity has a limited scope, although it involves a small tax burden.
3. The creation of a permanent representative office is not beneficial in terms of taxation due to the fact that it will have to pay all taxes approved by the tax legislation of the Russian Federation without the right to switch to a special regime for their payment.

If you choose between a branch and a representative office, you need to decide for what purpose a separate subdivision is created - to conduct full-fledged activities and perform all the same functions as the parent organization abroad, or only to represent and protect the interests of the head office. In the second case, it will be sufficient to establish a representative office, and in the first case, one cannot do without opening a branch on the territory of the Russian Federation.

Features of opening a branch of a foreign company in Russia

A branch is sometimes called a permanent establishment, these are identical concepts, but the key word here is “permanent”. A representative office is recognized as such, which on a regular basis conducts entrepreneurial activities in the Russian Federation related to:

• to the sale of goods from their own warehouses located in Russia;
• to the implementation of construction, installation, installation, adjustment, assembly, operation, maintenance of equipment in accordance with the concluded agreements (equipment can also be understood as slot machines);
• to the exploitation of subsoil and/or other natural resources;
• to perform any other work, except for those listed in paragraph 4 of Art. 306 of the Tax Code of the Russian Federation.

Branches of foreign organizations accredited in Russia are characterized by the following features of their activities:

• Branches have the right to engage in entrepreneurial activities.
• Branches like not legal entities:
  • not liquidated due to bankruptcy;
  • do not have authorized capital;
  • do not prepare financial statements;
  • do not pay VAT on the lease of residential and office premises without furniture and equipment;
  • do not consolidate tax returns.
• The branch is not a resident in terms of currency legislation.

Some activities of foreign organizations are controlled by the Russian authorities in a special way. An example is the work of foreign insurers in Russia.

The conditions for the activities of branches of foreign insurance companies seem to be more stringent compared to other types of activities due to the desire of the Russian authorities to maintain and develop the national insurance market, and this requires strict regulation of the integration of foreign capital into this area.

The total quota for the participation of foreign capital in the authorized capital of insurance companies is 25%, and the share of foreign investors in the authorized capital of Russian insurers cannot exceed 49%.

In addition, foreign firms are prohibited from engaging in:

• life insurance;
• compulsory insurance (including state insurance);
• insurance of property related to government supplies and performance in public purposes contract work;
• insurance of property interests of municipal and state enterprises.

9 years after Russia's accession to the WTO (August 22, 2012), foreign organizations will be able to establish direct branches in Russia if the assets of the firm as a whole turn out to be more than $5 billion at the end of the year before the application for the establishment of a branch is submitted.

Many also worry about whether a branch of a foreign company can be a declarant. Customs Code among others recognizes as declarants:

• foreign legal entities if they are official representative offices of foreign states or transport certain goods (in accordance with international agreements of the Russian Federation);
• foreign firms established in the territory Customs Union representative office and representative offices importing certain goods for personal needs.

Features of opening a representative office of a foreign company in Russia

The representative office is engaged in representing the interests of a legal entity and protecting them, but the answer to the question of whether a representative office of a foreign company is a legal entity will be negative.

Typically, the purpose of the functioning of the representative office is:

• facilitating the work of the company's head office in the Russian Federation;
• preparation of contracts with clients in Russia for the head office;
• advertising and promotion of goods, works, services of a foreign organization;
• marketing research;
• dissemination of information about the head office;
• search for clients among Russians;
• development of business contacts;
• conflict resolution.

Representative offices of foreign organizations in Russia have limited purposes: foreign trade or economic activity they cannot conduct transactions and do not enter into transactions on their own.

The active development of representative offices in the Russian Federation is explained by a number of advantages inherent in this form of doing business by foreign companies in Russia:

1. Availability of VAT exemptions in relation to the lease of premises (if the exemption is mentioned in the international agreement).
2. Accounting is kept only for the calculation of tax liabilities, no more.
3. Exemption from certain customs duties - for the period of accreditation in the Russian Federation, no fee is charged for the import of property required for the operation of the representative office.
4. Facilitated procedure for obtaining a foreign work force– representative offices are not required to obtain permission to hire accredited foreign workers.

Work of a foreign organization in Russia without a representative office

Any representative of a foreign business, however, not only a foreign one, working in another country, strives to minimize its costs, so it is extremely important for him to know whether a foreign company can work in Russia without a representative office. After all, even without establishing a representative office in Russia, foreign companies can derive income from activities in its territory, for example, by entering into contracts with domestic organizations directly.

The Russian authorities are very well aware of this, so they have taken measures to indirectly tax the activities of foreign firms. Although they do not pay taxes (for example, unified agricultural tax and property tax) as registered taxpayers, however, this is done for them by a Russian company with which they are cooperating. In this situation, it will be the tax agent of the foreign partner.

A list of income of foreign companies from which taxes are paid through the source of payments has been compiled:

1. Funds after the division of property.
2. Dividends from participation in Russian joint-stock companies.
3. Interest on debts of third parties.
4. Profit from the sale of shares.
5. Funds from the use of intellectual property on the territory of the Russian Federation (foreign films in Russian cinemas, for example).
6. Revenue from international transportation (if there is at least one point of acceptance and dispatch in Russia).
7. Remittances from the sale or rental of personal property (property must be company property and located in Russia).

One of the ways to reduce costs in such a situation is to register an individual entrepreneur instead of representing a foreign company by a resident of Russia, which will perform representative functions.

Often this is more profitable in terms of taxation and definitely easier in terms of documentation. FROM individual entrepreneur an agency agreement or a work contract is concluded, after which, according to the terms of the agreement, he begins to represent the interests of a foreign organization, receiving remuneration for this.

Where to register a separate division of a foreign company in Russia

Consider how to register a representative office of a foreign company in Russia. The registration procedure must certainly precede the start of the activities of a foreign company. To do this, you need to contact the MIFNS of the Russian Federation No. 47 for the city of Moscow: since 2015, it is she who has been authorized to accredit branches and representative offices of foreign companies in the territory of the Russian Federation.

If a separate division of a foreign company is going to carry out activities in the field of civil aviation, you should apply for accreditation in federal agency air transport.

Representative offices of foreign credit companies must be accredited by the Bank of Russia (however, the Federal Tax Service of Russia is in charge of issuing a certificate of making an entry in the state register of accredited representative offices).

Both in the case of aviation and credit companies, personal accreditation is required for foreigners who plan to work in a branch or representative office established in the territory of the Russian Federation. This issue is dealt with by the Chamber of Commerce and Industry of the Russian Federation.

If a foreign firm (company) is going to open a representative office in Moscow, then this procedure, unlike that in other regions of the country, does not involve the preliminary execution of a document confirming the approval of the location of a separate subdivision on the territory of a constituent entity of the Russian Federation with local authorities authorities.

The main stages of establishing a foreign representative office in the Russian Federation

The procedure for registering credit institutions with foreign investments in Russia seems to be quite long and complicated and consists of the following stages:

• preparation of the necessary documentation;
• applying to a body that has the authority to accredit companies with a chosen line of business, submitting documents (the procedure also includes certification of the number of foreign personnel by the Chamber of Commerce and Industry);
• waiting for the issuance of a permit to establish a representative office and a certificate of entry in the Consolidated State Register of accredited representative offices;
• printing production;
• applying to the tax authorities for registration (for example, to open a representative office in Moscow, you need to contact the MIFNS No. 47 of Moscow);
• obtaining a document on registration in the statistical register of Rosstat;
• registration in off-budget funds;
• opening a bank account and notifying the tax service about it.

Accreditation of foreign companies in Russia

Registration of a representative office or branch of foreign legal entities on the territory of the Russian Federation is impossible without prior accreditation.

Accreditation is recognition and confirmation legal status a separate subdivision of a foreign organization.

Today in Russia there is no single body that would deal with accreditation, and therefore this responsibility is delegated to various government agencies, depending on the field of activity of the foreign company.

Until 2015, accreditation of foreign representative offices and branches was carried out by:

1. Chamber of Commerce and Industry of the Russian Federation.
2. State Registration Chamber under the Ministry of Justice of the Russian Federation.
3. Ministry of Justice of the Russian Federation.
4. Ministry of Foreign Affairs of the Russian Federation.
5. Bank of Russia.
6. Federal Aviation Service of the Russian Federation.

Since 2015, the functions of the accrediting body have been transferred to the Federal Tax Service (MIFNS No. 47).

Tax registration of representative offices of foreign companies

Any corporate entities, including representative offices, branches and organizations themselves, legally capable and established under the laws of foreign states, are recognized as legal entities for tax purposes. The creation of a permanent representative office is not considered a corporate form of a unit: it can be recognized for the purpose of tax accounting as a branch, representative office, commercial enterprise of legal entities or individuals working on behalf of and in the interests of foreign company.

A separate subdivision of the company, which will operate in Russia, must register with the registering tax authorities within 30 days. This procedure is approved by the Ministry of Finance of the Russian Federation, however, its violation does not provide for punishment, including a fine.

Without exception, all branches and representative offices of foreign companies are required to register with the tax service of the region of the Russian Federation in which its activities are actually carried out or vehicles and real estate are located.

If work is carried out in several districts at once, each of them must be registered with the local inspectorate of the Federal Tax Service.

Changing the legal address of a representative office of a foreign company involves adjusting registration data: FTS employees must be notified in a timely manner about this. If we are talking about transferring a company to the territory of another subject of the Russian Federation, it will have to be removed from tax records and re-registered with the Federal Tax Service of the region that the company has chosen to carry out commercial activities.

Important: if the representative office / branch or the foreign company itself has changed or will change the information that is included in the Consolidated Register, the management of the separate subdivision is obliged to notify the registering authority about this and make changes to the register no later than 15 calendar days from the date of loss of relevance of the relevant information.

It should be noted that the basis for registration with the Federal Tax Service of Russia is not only the opening of a division of a foreign company in the Russian Federation, this may include the purchase of real estate or vehicles in Russia, including those imported into the country, opening accounts in Russian banks and making profit from sources In Russian federation.

In the process of registration, the tax authority assigns a TIN and KPP to a foreign company at the same time, but sometimes a KIO (foreign organization code) is indicated instead of a TIN. Both codes are indicated in the certificate issued upon completion of the registration procedure (in the form 2401IMD).

Registration of a representative office of a foreign company in off-budget funds

After a foreign company has opened its representative office in the Russian Federation, settled all relations with the tax service, it must register with extra-budgetary funds - the Pension Fund and the Fund social insurance, for which the law has 30 days from the date of completion of registration.

The registration procedure takes 5 days, but if any of the required documents are not submitted, the process will be delayed for a longer period due to the necessary request for information from the Federal Tax Service and the Rosstat branch in such a situation.

Upon request, the representative office / branch is assigned, like all legal entities in Russia, statistics codes:

• OKPO,
• OKOGU,
• OKATO,
• OKVED,
• OKSF,
• OKOPF.

It is not required to submit any documents to the Compulsory Medical Insurance Fund (FOMS) on your own: the Pension Fund will provide information about the branch / subdivision.

Production of a seal for a branch / representative office of a foreign organization in the Russian Federation

The seal of a representative office of a foreign company cannot be made on the basis of the preferences and decisions of the founders or heads of separate divisions in the territory of the Russian Federation. The sketch of the seal of the created branch or representative office must first be registered with the Ministry of Taxes and Taxes of the Russian Federation, for which it will be necessary to prepare the following set of documents:

1. Application for printing.
2. Sketch approval document (for example, an order from the head of a separate subdivision).
3. A notarized copy of the permission to establish a representative office.
4. A notarized copy of the certificate of entering information about the subdivision of a foreign company in the Consolidated Register of Accredited Institutions.
5. Regulations on a branch or representative office (notarized copy).
6. A copy of the head of the department.
7. Power of attorney issued to the head of a separate subdivision.

The production of the seal will begin only after it has been assigned a number in the City Register of Seals (usually issued by the manufacturer - an organization accredited at the Moscow Registration Chamber). You will need to present two notarized copies of:

1. Permissions to establish a separate division of a foreign company.
2. Certificate of entry into the Consolidated State Register.

The entire procedure for assigning a number and making a seal takes no more than 3 days. Minimum cost such a service is 100 rubles and depends on the equipment, method and urgency of printing.

Opening a current account in a Russian bank

To complete the procedure for registering a branch or representative office of a foreign company in Russia, it is necessary to open a current account in Russian bank. Authorized banks open accounts on the basis of concluded bank account agreements on behalf of accredited representative offices.

Opening bank accounts for the purpose of performing fiscal operations by separate subdivisions of foreign organizations involves the submission of additional documents:

• regulations on branch/representative office;
• power of attorney issued to the head of a separate division.

In addition to the papers listed above, in order to open a current account with a bank, a foreign legal entity will also need to collect a standard set of documents. The authority to open accounts (ruble and currency) is held by the head of a separate subdivision of a foreign company.

To learn about the composition of the complete set of required documents for opening an account for a division of a foreign company in a Russian bank, read the information about.

Required documents for opening a representative office of a foreign company in Russia

A separate subdivision of a foreign company can start its activities only after submitting the required package of documents to the Federal Tax Service (MIFNS No. 47) - for accreditation, to the tax authorities - for tax registration and to extra-budgetary funds - also for registration.

Documents for opening a branch of a foreign legal entity that must be collected:

1. An extract from the register of legal entities of the state in whose territory the organization is registered, a certificate of incorporation (or other document that contains information about the registration number, date, place of registration, registration authority and is issued in a foreign state upon registration).
2. The decision to establish a branch / representative office or a copy of the agreement on the basis of which work is carried out on the territory of Russia (with the signature of the head of the branch or other authorized representative).
3. A power of attorney issued to the appointed head of a new branch/representative office, giving him the appropriate authority (usually, this is a general power of attorney, which is unlimited abroad, but it is recognized by the Russian authorities as valid for only 1 year).
4. An ordinary power of attorney for a representative of a foreign company who submits and receives documents (if he is not the head of a branch).

Additional set of papers for presentation to the accrediting body:

1. Statement in writing in MIFTS No. 47 for Moscow (form 15AFP) signed by the head of the branch / representative office or a person authorized to certify documents.
2. Constituent documents (charter) of a foreign organization.
3. Certificate received from the authorized body of the state in which the head office of a foreign company is opened, on the registration of the organization as a taxpayer (must contain a taxpayer code or its equivalent).
4. A copy of the identity card and certificate of registration with the tax authority (TIN, if any) of the head of the representative office or branch.
5. Card of information about the representative office or branch of a foreign organization.
6. Letters of recommendation from Russian business partners(minimum 2).
7. A document proving that the location of a branch/representative office of a foreign company outside Moscow has been agreed with local executive authorities.

Additional set of documents to be submitted to the registration authorities for registration with the tax authority:

1. Application form for registration of a foreign organization with tax authorities (2001I).
2. Regulations on a branch or representative office.
3. Charter of the foreign parent company.
4. A certificate from the tax service of the state in which the head office of the foreign company is located that the company in question pays taxes. It must contain a taxpayer code or an equivalent that replaces it (no more than six months should pass from the moment it is issued to the presentation to the Federal Tax Service of Russia).
5. Permission to establish a branch or representative office.
6. Certificate of entry into the Consolidated Register of Accredited Representative Offices.

Russian tax authorities are not entitled to demand other documents.

An additional set of papers for submission to extra-budgetary funds:

1. Application for registration in non-budgetary funds.
2. Regulations on the branch / representative office.
3. A copy of the certificate of registration with the tax service in Russia (certified by a notary).
4. Permission to establish a branch/representative office on the territory of the Russian Federation.
5. Certificate of entering information about the branch / representative office in the Consolidated Register of Accredited Representative Offices.
6. Statistical codes assigned to a division of a foreign company.
7. Documents confirming information about legal address(usually a letter of guarantee).
8. An order on the appointment of an accountant or a certificate of the absence of an accountant in a subdivision of a foreign organization.

Documents provided by foreign companies to Russian state institutions, are valid for 12 months from the date of issue.

The documents must show the following information about a foreign company and its subsidiaries established on the territory of the Russian Federation (if such information is not in the papers, they must provide it to the state services of the Russian Federation in the form of additional data):

• direction of activity of the organization and its divisions;
• location of the foreign company;
• contact details of the company itself and divisions located in Russia ( Email, Internet resource address, phone number);
• information about the head of the organization, the founder of the head office (as an individual or legal entity - registration number, day of registration, name and address of the registering authority, taxpayer code), head of the representative office or branch (passport data, registration address, date and place of birth, TIN );
• full name of the servicing banking institution, current account number, SWIFT code;
• the size of the authorized capital;
• the number of employees and the planned number of foreign employees of the branch/representative office in Russia;
• income for the previous year;
• Russian business partners.

Legalization and translation of documents of foreign companies

Each foreign document must have an apostille or a genuine mark of legalization in a consular office abroad.

All papers are submitted to Russian state institutions translated into Russian, and the translation must be performed by an organization accredited for this, and then certified by a notary or consulate of the country of origin.

Powers of attorney and decisions must be notarized by the signatures contained in them and the powers of the signatories.

With some states, Russia has concluded agreements that abolish the legalization of documents. If the country of incorporation is a party to such an agreement, it does not need to legalize securities when doing business in the territory of the Russian Federation.

The cost and terms of the procedure for registering a foreign representative office in the Russian Federation

For the accreditation of each branch opened in Russia, the head office of a foreign organization will have to pay a state fee, the amount of which is 120 thousand rubles for any period of accreditation. No fee is charged for the accreditation of a representative office.

The terms for consideration of documents will be:

• 18 working days at the State Registration Chamber;
• 5-10 business days at the Chamber of Commerce.

Surcharge to the State Registration Chamber for urgency (readiness of the certificate within 5 days) is 15 thousand rubles, the Chamber of Commerce and Industry does not conduct urgent procedures.

In addition, the services of the State Registration Chamber for issuing a certificate of accreditation of a branch or representative office of a foreign company are paid, the amount of payment varies depending on the period of accreditation:

The cost of issuing an accreditation certificate (thousand rubles)
Fees for the State Registration Chamber
Duration of accreditation (years)	Branch	Representation
1	20	35
2	35	65
3	50	80
5	75	-
Fees for the Chamber of Commerce and Industry
1	-	about 90 ($1500)
2	-	about 150 ($2500)
3	-	about 210 ($3500)

The tax authorities of Russia carry out the registration of a foreign company as a taxpayer within 5 working days.

The process of obtaining permits to attract foreign labor by a branch of a foreign company can take 3-12 weeks. Deadlines depend on the type of work permit.

The head of a foreign separate subdivision, his rights and obligations

A foreign citizen may be appointed to the position of head of a branch or representative office of a foreign organization located in Russia only after. It is also necessary to obtain a special permit to attract foreign personnel to work in a branch of a foreign company (can be issued only after the completion of the accreditation procedure).

Representation of the interests of a foreign legal entity, their protection, execution of orders from the head office, ensuring the functioning of a separate subdivision in Russia are the main tasks of the head of a branch/representative office of a foreign company.

The executive body (general director) of the head office must issue an order to appoint an individual to the position of head, with whom they conclude labor contract, stipulate the terms of remuneration for work.

The salary of the head of a representative office of a foreign company will depend on the scale of the foreign founding organization and the scope of duties assigned to him.

Any actions the head of a separate subdivision of a foreign company performs on the basis of a power of attorney issued to him and a regulation on a branch / representative office on behalf of the founding organization.

The text of the regulation on a branch/representative office, approved by the governing body of a foreign company, sets out the procedure for managing a branch/representative office, which describes:

• management procedure in detail;
• the method, rules and terms of bringing the orders of the company's managers to the heads of departments;
• clear instructions about who the leader reports to and to whom he reports;
• the procedure for carrying out inspections of the work of managers.

The power of attorney is issued personally to the head, and not to the unit as a whole, it indicates:

• date of registration;
• list of powers of the head;
• his right to resolve issues that have arisen in the course of operational and current work;
• his right to sign contracts, make transactions (contract amounts may be limited, restrictions on the subject of the agreement may be announced, etc.);
• the right of the head to open a current account in a banking institution (ruble or foreign currency), manage money;
• his right to issue powers of attorney and transfer his powers in case of unforeseen situations, the conditions for such actions.

The change of the head of the representative office is not a personal decision of the founders of the head office, this event must be notified to the units controlling the activities Russian structures. Information about this must be documented, on its basis, appropriate changes will be made to the Consolidated Register of Accredited Subdivisions.

Accounting and reporting of foreign representative offices

After registration, a separate subdivision of a foreign organization is obliged to maintain accounting records, namely, to draw up internal reporting for the head office. It is prepared in the language and in the manner prescribed by the laws of the state in which the parent company is established.

Closing of a foreign representative office or branch in Russia

Liquidation of a representative office or branch of a foreign company is a procedure aimed at terminating the activities of a unit and deregistering it with the tax service.

The closure of a representative office of a foreign organization in Russia must be carried out in accordance with the rules stipulated current legislation RF.

The grounds for terminating the work of a representative office may be:

1. The expiration of the accreditation, the renewal of which was not taken care of in time.
2. Closing of the head office in the state where it was registered.
3. Systematic violations Russian laws subdivisions of a foreign organization and the subsequent decision of the accreditation body on their liquidation.
4. Termination of an international agreement between Russia and the state where the company is registered, which opened a representative office in the Russian Federation on the basis of this agreement.
5. The decision to close the representative office, taken by the founders of the parent company.

Before starting the procedure for closing a separate division of a foreign organization, it is necessary:

• Write an application for liquidation (form 15PFP), which is certified by the signature of the head of the branch or an authorized person and which contains the following information:
  • reasons for termination of economic activity;
  • registration number;
  • day of accreditation;
  • period of validity of the permit.
• Draw up an application in the form 11SN-Accounting.
• Make a notarized copy of the official minutes of the decision of the meeting to close the separate subdivision.
• Prepare constituent documents, company charter.
• Raise the minutes of all meetings during which it was decided to open a branch / representative office and appoint a leader.
• Issue a certificate of closing a current account in a banking institution.
• Issue a power of attorney to the head of the branch / representative office.
• Issue a power of attorney for the attorneys of a foreign company who will be instructed to carry out the liquidation procedure on behalf of the head office.
• Raise the previously received certificate of registration of the unit in Russia, indicating:
  • changes made;
  • taxpayer number.

To deregister with the FIU, you will additionally need:

• application in the form of the PFR;
• all reports to the Pension Fund on the closing day (2 copies of the originals and copies in electronic format);
• extract or information sheet from the tax service;
• notice of deregistration with the Federal Tax Service.

To deregister with the FSS, you will additionally need:

• application in the form approved by order No. 576 n dated October 25, 2013;
• liquidation report (Form 4 FSS);
• notification of the amount of insurance premiums;
• insurance certificate (or notice);
• a letter of refusal from the funds remaining on the account in favor of the Russian treasury (if the money is not withdrawn to the company's account).

To deregister with Rosstat, you must provide:

• notification with OKTEI codes;
• a letter requesting deregistration of the unit.

Step-by-step instructions for liquidating a branch of a foreign company located in Russia:

• Organization of a meeting of the founders of the parent company and making a decision on liquidation.
• Registration of all required documents, including income declaration and calculation of the full amount of tax.
• Notification of interested parties, including employees.
• Conducting staffing activities.
• Sending a notification to the MIFTS No. 47 on deregistration and termination of the unit (within a period of no more than 15 days from the date of the decision on liquidation).
• Regional Office Notice pension fund on closing a branch/subdivision (up to 15 days from the date of the decision).
• Notification of the local division of the Social Insurance Fund about the closure (in the same time frame as the MIFTS, PFR).
• Passing the reconciliation in the MIFTS:
  • in the input department (with the presentation of a declaration of income);
  • in the department of cameral checks (with the presentation of an extract on transactions on the current account);
  • in the department for work with taxpayers and the department of debt settlement (with the presentation of a register of information on the income of employees of the department and reconciliation of tax payments);
• Submission of an application to the MIFNS on the completion of the closing procedure.
• Deregistration in the FIU.
• Deregistration in the FSS.
• Receiving notification of deregistration from Rosstat.
• Closing a bank account.

It takes 14 days from the date of submission of a set of papers to the tax authorities to consider documents and an application for closing a separate subdivision, the total liquidation period is approximately 30 days.

If it is necessary to carry out inspections, the process is delayed until their final completion and lasts about 3 months.

The Pension Fund announces its decision within 10 days, the Social Insurance Fund will only need a week.

In general, the entire process of closing a branch or representative office, from the preparation of documents to the issuance of a decision by tax authorities and extra-budgetary funds, takes about six months.

How a foreign company can open a representative office or create a branch in Russia: Video

In applying the Agreement, the competent authorities of the Contracting States shall, in particular, be guided by the commentaries to the Organization for Economic Co-operation and Development (OECD) Convention on Taxes on Income and Capital Model, according to which the definition of a “permanent establishment” as a fixed place of business through which an enterprise conducts all or part of its business activities, contains:

The existence of a "place of business";

This place of business must be "fixed", that is, it must be installed in a certain place with a certain degree of permanence;

The conduct of the business of an enterprise through this fixed place of business. This means usually that persons who are in one way or another dependent on the enterprise (staff) conduct the business of the enterprise in the state in which the fixed place is located.

Under the provisions of Article 5 of the Commentaries to the OECD Model Convention, the expression "place of business" includes any premises, facilities or installations used for the conduct of an enterprise's business. It does not matter whether the premises, facilities or installations at the disposal of the company are owned or rented.

A place of business can also exist without premises or the need for them to conduct the business of the enterprise, it is enough to have some space at its disposal. The place of business may also be located in another enterprise, for example, where a foreign enterprise permanently has at its disposal some or part of the premises belonging to another enterprise.

In this regard, the absence of own or rented premises, furniture, technical equipment, computers, telephones and cars in the Russian Federation does not give grounds to qualify the company's activities as not carried out through a permanent establishment.

For a place of business to be created as a permanent establishment, the entity using it must conduct all or part of the business through it. Moreover, the activity does not have to be permanent, that is, carried out without interruption in operations, but the operations must be of a regular nature.

A fixed place of business through which the enterprise carries on only activities that are preparatory or additional to the enterprise should not be considered a permanent establishment. Where it is difficult for an enterprise to distinguish between preparatory and non-preparatory and non-preparatory activities, the decisive criterion is the activity of the fixed place of business, which in itself may constitute a major and significant part of the activities of the enterprise as a whole. Where the main purpose of a fixed place of business is identical to the main purpose of the enterprise, it does not carry out preparatory or additional activities.

Thus, a permanent establishment for tax purposes is considered to be formed if the operations constituting the essence or a significant part of the business activities of a foreign organization are carried out in a fixed place (space) on a regular basis. The definition of a permanent establishment in Article 5 of the OECD Model Convention is close to the definition of this term given in Article 306 of the Russian Tax Code.

Example.

A foreign organization - a resident of Germany owns a building located on the territory of the Russian Federation. A foreign organization for the implementation of activities for the delivery of premises for rent has created a directorate, which is engaged in the operation of this building, concludes contracts with public utilities. Income from this type of activity is obtained regularly, lease agreements are concluded with a large number of organizations for periods exceeding one tax period.

In accordance with Article 5 of the Agreement between the Russian Federation and Federal Republic Germany on the avoidance of double taxation with respect to taxes on income and property of May 29, 1996, for the purposes of the Agreement, the expression "permanent establishment" means a fixed place of business through which the activities of an enterprise are wholly or partly carried on.

When is this tangible property as facilities, premises, are transferred or leased to third parties through a fixed place of business held by an enterprise of one Contracting State in the other, that activity makes the place of business a permanent establishment. Letter of the UMNS for the city of Moscow dated February 13, 2002 No. 26-12 / 6754.

Example.

A service agreement has been concluded between a Russian organization and a Swiss company, according to which the Swiss company provides consulting and other services at the customer's enterprise. Employees Swiss company to provide services, they repeatedly come to Russia for several days and stay on the territory of the Russian Federation for a total of less than 3 months a year.

In accordance with the Agreement between the Russian Federation and the Swiss Confederation of November 15, 1995 "For the avoidance of double taxation with respect to taxes on income and capital", the term "permanent establishment" means a fixed place of business through which the entrepreneurial activity of an enterprise is wholly or partially carried out.

In this case, the activities of the Swiss company may lead to the formation of a permanent establishment for the following reasons:

Ø provision of consulting services is one of the main activities of the company;

Ø such activities in Russia are carried out over a long period of time;

Ø it is conducted on an ongoing basis (specialists have repeatedly come to Russia from Switzerland);

Ø is associated with a certain geographical point (location of the Russian organization).

The fact that employees of a foreign organization who come to Russia for several days stay on Russian territory for a total of less than 3 months a year indicates not episodic, but regular provision of consulting and other services by a Swiss company in the Russian Federation.

Thus, the activity of a firm providing services to a Russian enterprise may lead to the formation of a permanent establishment, since the commercial activity of a Swiss company is carried out for an extended period of time, on an ongoing basis and is associated with a certain geographical point.

In accordance with paragraph 5.1 of the comments to the model model of the OECD Convention on taxes on income and capital, which was the basis for the development of the current Agreement between the Russian Federation and the Swiss Confederation on the avoidance of double taxation with respect to taxes on income and property, since the essential features are met - there is a place of activity a foreign organization through which entrepreneurial activity is regularly carried out on the territory of the Russian Federation. (Letter of the Ministry of Finance of the Russian Federation dated November 23, 2001 No. 04-06-05 / 2/20).

Example.

The German company in the Russian Federation is engaged in holding international industrial exhibitions, which, according to the constituent documents, corresponds to its main activity. This activity was carried out regularly for more than two years by German employees seconded to Moscow for the duration of the exhibitions.

In this case, the activities of a foreign company may lead to the formation of a permanent establishment for the following reasons:

provision of these services is one of the main activities of the company;

· similar activities in the Russian Federation are carried out for a long period;

It is carried out on an ongoing basis;

· activity is connected with a certain geographical point (location of the Russian organization).

These signs are necessary and sufficient to qualify the activities of a German company as carried out through a permanent establishment.

The definition of the term "permanent establishment of a foreign organization" for the purposes of Chapter 25 of the Tax Code of the Russian Federation and the criteria on the basis of which the activities of a foreign organization are considered leading to the formation of a permanent establishment are given in Article 306 of the Tax Code of the Russian Federation.

In accordance with paragraph 2 of Article 306 of the Tax Code of the Russian Federation under on For the purposes of Chapter 25 of the Tax Code of the Russian Federation, a permanent representative office of a foreign organization in the Russian Federation means a branch, representative office, department, bureau, office, agency, any other or other place of activity of this organization (hereinafter referred to as the branch) through which the organization regularly carries out business activities on the territory of the Russian Federation related to:

Ø use of subsoil and (or) use of other natural resources;

Ø carrying out the construction, installation, installation, assembly, adjustment, maintenance and operation of equipment, including slot machines, as provided for by the contracts;

Ø sale of goods from warehouses located on the territory of the Russian Federation and owned by this organization or leased by it;

Ø the implementation of other works, the provision of services, the conduct of other activities, with the exception of those provided for in paragraph 4 of Article 306 of the Tax Code of the Russian Federation.

It follows directly from paragraph 2 of Article 306 of the Tax Code of the Russian Federation that the legislation establishes the following etc signs of a permanent establishment:

Ø the presence of a separate subdivision or any other place of activity of a foreign organization on the territory of the Russian Federation;

Ø carrying out by a foreign organization of entrepreneurial activity on the territory of the Russian Federation;

Ø Carrying out such activities on a regular basis.

If there is a combination of these characteristics, the activity of a foreign organization in the Russian Federation is defined as leading to the formation of a permanent establishment.

It should be noted that the concept of "permanent establishment", used for tax purposes, has not an organizational and legal meaning, but a meaning that qualifies the activities of a foreign organization, which is associated with the emergence of a foreign organization's obligation to pay income tax in the Russian Federation. In this regard, such circumstances as, for example, the presence or absence of permission to open and extend the period of activity in the Russian Federation of representative offices of foreign legal entities (accreditation) do not matter for taxation.

Analyzing the signs in accordance with which the formation of a permanent establishment is recognized, it is necessary to clarify the following concepts: entrepreneurial activity, place of activity and regularity of activity.

One of the conditions necessary for the establishment of a permanent representative office is the requirement that the place of business of the permanent representative office must be located on the territory of the Russian Federation.

At the same time, the Tax Code of the Russian Federation does not define the concept of “place of activity”. At the same time, as a rule, it is believed that a given place of activity should be characterized by territorial and property isolation, since it is precisely these properties that separate subdivisions, representative offices and branches have. However, the provisions of paragraph 2 of Article 306 of the Tax Code of the Russian Federation do not contain any mention of these features.

Since the Tax Code of the Russian Federation does not specify what is meant by a “permanent place of business”, according to the author, approaches developed by international practice should be applied.

As a reminder, according to the provisions of Article 5 of the Commentaries to the OECD Model Convention, the expression "place of business" includes any premises, facilities or installations used for the conduct of business of an enterprise. It does not matter whether the premises, facilities or installations at the disposal of the company are owned or rented. A place of business can also exist without premises or the need for them to conduct the business of the enterprise, it is enough to have some space at its disposal. The place of business may also be located in another enterprise, for example, where a foreign enterprise permanently has at its disposal some or part of the premises belonging to another enterprise.

Thus, it is considered that a foreign organization has a permanent place if its activities in the Russian Federation are carried out in a rented premises or in the premises of a customer or any other area specially provided for this.

Example.

A foreign organization has equipment in Russia that it leases to a Russian organization. At the same time, a foreign organization systematically leases out its property by searching for tenants, entering into lease agreements with them, entering into agreements for current repairs and maintenance of equipment in good condition and other actions on the territory of the Russian Federation. Such activities of a foreign organization may lead to the formation of a permanent representative office in the Russian Federation.

When tangible property (in this case, equipment) is transferred or leased to third parties through a fixed place of business, maintained by an enterprise of one contracting state in another, this activity makes the place of business a permanent establishment. This position is also set out in clause 2.4.1 of the Methodological Recommendations to Tax Authorities on the Application of Certain Provisions of Chapter 25 of the Tax Code of the Russian Federation Concerning the Features of Taxation of Profits (Income) of Foreign Organizations, approved by Order of the Ministry of Taxation of Russia dated March 28, 2003 No. BG-3-23 / 150 “On Approval of Methodological Recommendations to Tax Authorities on the Application of Certain Provisions of Chapter 25 of the Tax Code of the Russian Federation Concerning Features of Taxation of Profit (Income) of Foreign Organizations” (hereinafter the Methodological Recommendations). According to these Methodological Recommendations, if the mere fact of ownership by a foreign organization of property in the territory of the Russian Federation cannot be considered as leading to the formation of its permanent representative office in the territory of the Russian Federation (paragraph 5 of Article 306 of the Tax Code of the Russian Federation), then the use of such property for commercial purposes may under certain conditions to create a permanent representative office of a foreign organization.

In accordance with international conventions, a “permanent establishment” is defined as a fixed place of business through which an enterprise conducts all or part of its business.

At the same time, the provisions of Article 5 of the commentaries to the model of the OECD Convention determine that the specified place of business must be “fixed”, that is, it must be installed in a certain place with a certain degree of permanence. It also follows that a permanent establishment can only be considered to exist if the place of business has a certain degree of permanence, that is, if it is not of a temporary nature. Activities do not have to be permanent, that is, carried out without interruption in operations, but operations must be of a regular nature.

Thus, the provisions of international agreements do not directly establish the requirement for the regularity of commercial activities as an essential feature for the recognition of a permanent establishment. However, this condition is still present, since in its absence the place of business will not be recognized as permanent.

In this regard, one of the signs for the qualification of a permanent establishment is the regularity of activities both in accordance with the requirements of international agreements and on the basis of Russian tax legislation.

Unfortunately, the definition of the concept of "regularity" is absent in the Tax Code of the Russian Federation and is not disclosed in the comments to the model of the OECD Convention. In this regard, we note the current position of the tax authorities.

In the opinion of the tax authorities, regular activity, in particular, is the activity of separate subdivisions of foreign organizations that have entered or are required to register with the tax authorities in accordance with subsection 2.1 of the Regulations on the Peculiarities of Accounting with the Tax Authorities of Foreign Organizations. This approach is indicated in paragraph 2.2.1 of the Guidelines.

In accordance with clause 2.1.1 of the Regulations on Accounting Features of Foreign Organizations with Tax Authorities, if a foreign organization carries out or intends to carry out activities in the Russian Federation through a branch for a period exceeding 30 calendar days a year (continuously or in aggregate), then it is obliged register with the tax authority at the place of business no later than 30 days from the date of its commencement.

Since the obligation to register for tax arises only for taxpayers (Article 23 of the Tax Code of the Russian Federation), the tax authorities consider that when carrying out activities in the Russian Federation, in the aggregate, within 30 days, the criterion for the regularity of carrying out activities has been met and the foreign organization has established a permanent representative office on the territory of the Russian Federation, that is, it became a taxpayer, and, therefore, is subject to tax registration.

It should be noted that the activity of a foreign organization in the Russian Federation for 30 days in total is not the only circumstance in which the formation of a permanent establishment is recognized on the basis of the regularity of activity in the Russian Federation. According to the Methodological Recommendations, the tax authorities determine the activity in terms of its compliance with the criterion of regularity and in other cases on the basis of an analysis of the actual implementation of the activities of the foreign organization itself or other organizations or individuals in favor of the foreign organization in each specific case. At the same time, isolated facts of any business transactions in the Russian Federation, for example, individual facts of the sale in Russia of real estate owned by a foreign organization, cannot be considered as “regular activities”.

According to the author, designated methodological recommendations practical approach tax authorities to determine the regularity of activity cannot serve legal basis for the establishment of a permanent representative office of a foreign organization in the Russian Federation and may serve as a basis for the emergence of tax disputes.

Example.

The Russian enterprise has entered into agreements with firms - residents of Austria and Germany for the provision of services on the territory of the Russian Federation for after-sales service equipment. Employees of foreign firms come to the enterprise 1-2 times a year and within 2-3 days provide services stipulated by the terms of the contracts.

The UMNS for the city of Moscow clarified its position regarding the recognition of regular activities in this situation in Letter No. 26-12/32420 dated June 18, 2003.

In the case under consideration, it is necessary to be guided by the definitions of the term "permanent establishment", which are given in Article 5 of the Convention between the Government of the Russian Federation and the Government of the Republic of Austria for the avoidance of double taxation with respect to taxes on income and capital of April 13, 2000 and in Article 5 of the Agreement between the Russian Federation and the Federal Republic of Germany On the avoidance of double taxation with respect to taxes on income and property of May 29, 1996.

In these articles of the Agreements, it is determined that the expression "permanent establishment" means a permanent place of business through which the activities of the enterprise are carried out in whole or in part. At the same time, the Agreements do not define the period of time after which the activity of a foreign organization in the territory of another state leads to the formation of a permanent representative office (the exception is construction sites), as well as the start and completion dates for the activities of a permanent representative office. Therefore, when determining the dates for the beginning and completion of the activity of a permanent representative office, one should be guided by paragraph 3 of Article 306 of the Tax Code of the Russian Federation, that is, be guided by the criterion of regularity of activity.

Recognition of regular activity is carried out on the basis of paragraph 2.1 of the Regulations on the peculiarities of accounting in the tax authorities of foreign organizations, that is, if a foreign organization carries out or intends to carry out activities in the Russian Federation through a branch for a period exceeding 30 calendar days a year (continuously or in aggregate).

In view of the foregoing, the activities of resident firms in Austria and Germany to provide equipment maintenance services on the territory of the Russian Federation, if such services are provided by employees of foreign firms once a year for 2-3 days, is not regular and does not lead to the formation of permanent representative offices these firms in the Russian Federation.

Example .

In accordance with a separate contract, the German company once a year provides German specialists to the Russian company for a period of less than 25 days to train machine maintenance personnel.

Does the provision of personnel result in a permanent establishment for the German company?

In this case, in accordance with Article 5 of the Agreement between the Russian Federation and the Federal Republic of Germany "On the avoidance of double taxation with respect to taxes on income and property", the provision of services and the generation of income can be considered as one-time and not leading to the formation of a permanent establishment in the territory of the Russian Federation. Federation. With respect to derived income, one should be guided by paragraph 2 of Article 309 of the Tax Code of the Russian Federation. The obligations of a tax agent in the event of payment of income by a foreign organization are defined in paragraph 2 of Article 310 of the Tax Code of the Russian Federation.

Example.

The Finnish company several times a year provides the Russian organization with services for the repair and maintenance of equipment located on the territory of the Russian Federation (the specialists of the Finnish company stay in Russia for a total of less than 30 days).

In accordance with Article 4 of the Agreement between the Government of the Russian Federation and the Government of the Republic of Finland dated May 4, 1996, a permanent establishment of a foreign legal entity is understood as a permanent place of regular activity related to the construction, installation, installation, assembly, adjustment and maintenance of equipment, and as well as other work.

The Finnish company several times a year (in total, the specialists of the Finnish company stay in Russia for less than 30 days) Russian company repair and maintenance services for equipment located on the territory of the Russian Federation.

According to the author, such a short presence of the Finnish company's specialists in Russia cannot be considered a permanent place of regular activity of the Finnish company and, accordingly, it cannot be recognized as creating a permanent representative office of this company in Russia.

In accordance with Article 7 of the above Agreement, the income received by a Finnish company is not related to the implementation of activities through a permanent establishment and, accordingly, this income is subject to taxation only in the country of tax residence of the company, that is, in Finland.

Example.

A German company once a year sends its specialists to the Russian Federation for a period of less than 25 days to provide engineering services to a Russian company (services for training service personnel of beverage bottling lines).

In accordance with the provisions of the Agreement between the Russian Federation and the Federal Republic of Germany "On the avoidance of double taxation with respect to taxes on income and property" and Chapter 25 of the Tax Code of the Russian Federation, a permanent representative office is formed when the enterprise regularly carries out business activities. In the case under consideration, the provision of a service and the generation of income can be considered as one-time and not leading to the formation of a permanent establishment on the territory of the Russian Federation. (Letter of the Ministry of Finance of the Russian Federation dated March 26, 2002 No. 04-06-05 / 1/14).

To recognize that as a result of the activities of a foreign organization a permanent establishment is formed for tax purposes, it is necessary that this activity be of an entrepreneurial nature.

The Tax Code of the Russian Federation does not introduce a special definition of entrepreneurial activity. However, paragraph 1 of Article 11 of the Tax Code of the Russian Federation establishes that the institutions, concepts, terms of civil law are applied in the sense in which they are used in these branches of legislation, unless otherwise provided by the Tax Code of the Russian Federation. Therefore, in order to determine the nature of the activity, it is necessary to be guided by the definition of entrepreneurial activity given in the Civil Code of the Russian Federation as an independent activity carried out at one’s own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in in the manner prescribed by law (Part 3 of Clause 1 of Article 2 of the Civil Code of the Russian Federation).

At the same time, the key words in the above definition are the words "systematic profit" and "activities carried out by persons registered in this capacity in the manner prescribed by law."

In this regard, it should be noted that in relation to non-profit foreign organizations, the possibility of recognizing a permanent establishment on the basis of this criterion is excluded. In accordance with Article 1202 of the Civil Code of the Russian Federation, the legal capacity of foreign legal entities is determined by the law of the country of their establishment. Therefore, if a foreign legal entity is registered in the country of its establishment as, that is, an organization that does not pursue the goals of systematic profit making, then its activities in the territory of the Russian Federation cannot be considered entrepreneurial. In a number of countries, organizations established as non-profit organizations, the purpose of which is not the systematic extraction of profit, are prohibited from conducting entrepreneurial activities, while they can conduct activities to achieve the goals defined during their creation.

Thus, foreign legal entities established as non-profit organizations, by virtue of their legal capacity, cannot satisfy the sign of carrying out regular business activities, and therefore cannot create a permanent representative office in the Russian Federation for tax purposes.

Since most organizations are created specifically for the purpose of making a profit, their activities in the territory of the Russian Federation are entrepreneurial.

For more information on issues related to accounting and tax accounting in foreign organizations on the territory of the Russian Federation, you can find in the book of CJSC "BKR Intercom-Audit" " Foreign organizations and their representations.

 

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