What is understood to ensure the functioning of a permanent representation. Education of the Permanent Mission: Tax Aspect. Permanent Mission in World Practice

1. The provisions of Articles 306 - this Code establish the features of the tax calculation of foreign organizations carrying out entrepreneurship in the territory of the Russian Federation, in case such activities creates a permanent representation of a foreign organization, as well as the calculation of the tax by foreign organizations that are not related to activities through permanent representation in Of the Russian Federation receiving income from sources in the Russian Federation.

2. Under the permanent representative office of a foreign organization in the Russian Federation for the purposes of this chapter, the branch, representation, office, office, office, agency, any other separate division or other place of activity of this organization (hereinafter referred to as the Registration), through which the organization is regular carries out entrepreneurial activities in the territory of the Russian Federation associated with:

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

carrying out contracts provided for by contracts, installation, installation, assembly, commissioning, maintenance and operation of equipment, including slot machines;

selling goods from the territory of the Russian Federation and owned by this organization or rented warehouses;

the implementation of other works, the provision of services, maintaining other activities, with the exception of this article provided for in paragraph 4.

The activities of a foreign organization on the territory of the Russian Federation for the purposes of this Code also recognizes the activities carried out by a foreign organization - the operator of the new seabed field of hydrocarbon raw materials and associated with the extraction of hydrocarbon raw materials at the new naval coal of hydrocarbon raw materials.

3. The permanent representation of a foreign organization is considered to be educated since the beginning of regular implementation business activities through her separation. At the same time, the activities of the establishment of the department itself does not create a permanent representation. A permanent representation ceases to exist from the moment of termination of entrepreneurial activities through the foreign organization's department.

When using subsoil and (or) use of other natural resources, the permanent representation of a foreign organization is considered to be educated with an earlier of the following dates: the dates of entry into force of the license (permission) certifying the right of this organization to carry out relevant activities, or the dates of the actual start of such activities. In case the foreign organization performs work, provides services to another person who has a specified license (permission) or speaking as a general contractor for a person who has such a license (permission), in solving issues related to the formation and termination of the existence of a permanent representation of this foreign Organizations are applied by a procedure similar to the established paragraphs 2 - 4 of Article 308 of this Code.

4. The fact of the implementation of the foreign organization in the Russian Federation of the preparatory and auxiliary activity in the absence of signs of a permanent representation provided for in paragraph 2 of this article cannot be considered as leading to the formation of a permanent representation. The preparatory and auxiliary activities, in particular, belong:

1) the use of structures exclusively for the purpose of storage, demonstration and (or) deliveries of goods belonging to this foreign organization before the start of such delivery;

(see text in the previous edition)

(see text in the previous edition)

5. The fact of ownership of a foreign organization in securities, shareholders in the capital of Russian organizations, as well as other property in the Russian Federation in the absence of signs of a permanent representation provided for in paragraph 2 of this article, can not be considered for such a foreign organization as leading to the formation of permanent Representative offices in the Russian Federation.

The fact of the implementation of the Foreign Investment Fund (company) on the territory of the Russian Federation, specified in paragraph 14 of Article 25.13 of this Code, as well as those who hired by them, their employees and (or) representatives of the functions for the assets management of such a fund (company) and the fact of the implementation of functions specified in paragraph 3 of Article 246.2 of this Code, with respect to the Fund or Organizations (structures without a legal entity), in which such a fund (company), as well as other activities, directly related to the implementation of these functions, is directly or indirectly involved in cannot be considered as leading to the formation of a permanent representation in the Russian Federation of this Fund (company), foreign organizations (structures without a legal entity), in which such fund (company), (or) direct or indirect shareholders (participants directly or indirectly participates , shareholders, partners) of the specified Fund (Companies).

6. The fact of concluding a progress of a simple partnership agreement or other agreement, which suggests the joint activities of its parties (participants), carried out in whole or in part in the Russian Federation itself, cannot be considered for this organization as leading to the formation of a permanent representation in the Russian Federation.

7. The fact of the direction of the foreign organization of 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 the labor provision agreement (personnel) in the absence of signs of a permanent representation provided for in paragraph 2 of this article, cannot Considering as a fact that leads to the formation of a permanent representation of a foreign organization, who sent its employees, if such employees act solely on behalf of the organization and in the interests of the organization in which they were sent.

(see text in the previous edition)

8. Implementation of the foreign organization of operations on imports to the Russian Federation or export from the Russian Federation of goods, including within foreign trade contracts, in the absence of signs of a permanent representation provided for in paragraph 2 of this article, cannot be considered as leading to the formation of a permanent representation of this organization in Russian Federation.

(see text in the previous edition)

9. A foreign organization is considered as having a permanent representation if this organization carries out supplies from the territory of the Russian Federation belonging to it obtained as a result of processing on customs territory or under customs control, as well as if this organization carries out activities that provide the signs 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, is valid on the territory of the Russian Federation The name of this foreign organization, has and regularly uses the powers to conclude contracts or coordinate their essential conditions on behalf of this organization, while creating legal consequences for this foreign organization (dependent agent).

(see text in the previous edition)

The activities of a foreign organization do not lead to the formation of a permanent representation in the Russian Federation, if such an organization operates in the territory of the Russian Federation through the broker, the commissioner, the heading person of the foreign investment fund (company) specified in paragraph 14 of Article 25.13 of this Code, the professional participant of the Russian market valuable papers Or any other person acting within its main (normal) activity.

(see text in the previous edition)

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

11. UEFA activities (UNION OF EUROPEAN FOOTBALL ASSOCIATIONS) and UEFA subsidiaries from December 31, 2020 inclusive, FIFA (Federal International De Football Association) and FIFA subsidiaries referred to in the Federal Law "on the preparation and holding of the Championship in the Russian Federation World FIFA 2018 World Cup, FIFA 2017 Confederation Cup, UEFA Football Championship 2020 and Amendments to Certain Legislative Acts of the Russian Federation "and are foreign organizations

(see text in the previous edition)

12. The activities of the Confederations, National Football Associations, FIFA Media Information Manufacturers (FIFA), suppliers of goods (works, services) FIFA, commercial UEFA partners, suppliers of goods (works, services) UEFAs defined by federal law "On the preparation and holding of the FIFA 2018 FIFA World Cup in the Russian Federation, FIFA 2017 Confederation Cup, UEFA Football Championship 2020 and Amendments to Selected Legislative Acts of the Russian Federation", established registered or found outside the Russian Federation In connection with the implementation of the activities stipulated by the Federal Law, does not lead to the formation of a permanent representation of these organizations in the Russian Federation.

(see text in the previous edition)

13. Performed on the territory of the Russian Federation by agreement with FIFA (Federal International 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 of FIFA 2018 FIFA World Cup in the Russian Federation, FIFA 2017 Confederation Cup, European Football Championship UEFA 2020 and Amendments to Selected Legislative Acts of the Russian Federation" In connection with the implementation of the activities provided for by the Federal Law, established, registered or founded outside the territory of the Russian Federation, does not lead to the formation of a permanent representation of these organizations in the Russian Federation.

(see text in the previous edition)

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

15. The fact of implementation in the territory of the Russian Federation by a foreign organization specified in subparagraph 4 of paragraph 6 of Article 246.2 of this Code, as well as by employed by it, its employees and (or) representatives of the functions for managing such an organization, its activities related to the exploitation of ships, Mixed ships (river - sea) swimming, aircraft and (or) activities on international transportation of goods, passengers and their baggage and to provide other related services, in itself cannot be considered as a fact that leads to the formation of a permanent representation in the Russian Federation of the specified foreign organization, foreign organizations, in which is directly or indirectly involved such an organization, and (or) direct or indirect shareholders (participants, shareholders, partners) of this organization.

Pay and / or calculate the foreign organization tax, it is necessary when conducting activities in Russia through its permanent representation or with activities that are related to profit from Russian sources. However, the term " permanent representation"According to the norms of tax law, is not related to the representative office of a foreign company in a civil action, as it does not need a provision for representation for the emergence of a permanent representation in the tax sense.

According to clause 2 of Article 306 of the Russian Tax Code, permanent Office of a Foreign Company - Representative office, branch, bureau, office, agency, office, other separate division, or place of activity through which this company Constantly leads its business in Russia.

In accordance with clause 5 of Article 306 of the Russian Tax CodeFor the formation of a permanent representation in the Russian Federation of a foreign company, the fact of ownership of it by shares in the capital of organizations of Russia, securities and / or property in the territory of the Russian Federation does not lead to the absence of signs of permanent representation. In paragraph 4 of the same article, it is said that the maintenance of auxiliary or preparatory activities by a foreign organization does not entail the emergence of a permanent representation.

Signs of the emergence of the permanent representation of a foreign company in Russia:

1. Separed division or place of activity.
2. Regular maintenance subparagraph 1.1 of clause 2 of the provisions on the participants in the tax authorities of foreign organizations, which is Appendix No. 1 to the order of the Ministry of Account of the Russian Federation of April 7, 2000 No. AA-3-06 / 124 (hereinafter simply position), where it is indicated that under this concept it is meant to conduct activities more than 30 days a year.
3. Activities are entrepreneurial. 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 activity that answers a number of signs is:

• Independent activities.
• Activities carried out on their risk.
• Activities that are aimed at obtaining income from the sale of goods, the use of property and fulfillment work, providing services.

For the emergence of a permanent representation foreign company It is not obligated to operate by the forces of its employees. In accordance with clause 9 of Article 306 of the Tax Code, a foreign company has a permanent representation if this company operates through a person who represents it is interesting in Russia on the basis of contractual relations with it, operates in Russia on behalf of this company, regularly uses existing powers to conclude contracts or coordinate their main conditions. On behalf of the company, while creating consequences for a foreign company (i.e. dependent agent).

According to subparagraph 1 of clause 2 position, the emergence of obligations on registration with the tax authorities of Russia is possible two criteria: Place of activities, plus, regularity of activities. This is because regulatory act Registration and emergence of obligations on taxation in the Russian Federation are not associated.

If a foreign company has an account in the Bank of Russia, then it also does not entail the emergence of a permanent representation, but indicates the need for registration in the Russian tax authority of a foreign company at the place of registration with a banking institution, where the company has an account. The procedure for placing the tax accounting of a foreign company to open an account in the Bank of Russia is given in subparagraph 1 of clause 3 of the order of the Ministry of Anga of Russia dated April 7, 2000 No. AP-3-06 / 124 "On approval of the Regulation on the participants in the tax authorities of foreign organizations". Based on this, it can also be noted that the account management through Internet banking does not affect the emergence of a permanent representation.

Conclusions:

1. When using offshore or foreign companies, it is necessary to be very attentive so that these companies "Necriminally" have no permanent representation in Russia.
2. In order to use foreign and offshore companies when optimizing taxation in Russia in particular, in the CIS countries, it is necessary to consult both with professionals in the field of international taxation and local tax consultants in Russia and the CIS. Within our consultations, we can offer you invaluable ideas that you can bring to life with the help of your accountant and a local tax consultant.

In order to fully appreciate the pros and cons of the decision to create a permanent representation, it is necessary to determine the tax consequences of its occurrence. One of the signs of education of a permanent representation is to exercise a foreign organization of commercial activities on an ongoing basis. However, in the Russian tax legislation, a number of cases were registered when a permanent representation is not formed in the implementation of activities by a foreign company. These include intermediary activities, which does not always involve the creation of a permanent representation in the tax sense. While a foreign organization operates on the territory of the Russian Federation, without forming a permanent representation, tax jurisdiction applies to it not fully.

Publication

Determining the status of permanent representation

In the Russian Federation, the profit of a foreign company is taxed only if the profit is obtained as a result of the company's activities through a permanent representation, and only in a part that directly relates to permanent representation. Up until the moment, until a foreign person emerged a permanent representation, this person cannot be considered as a country participating in the economic life to fall under its unlimited tax jurisdiction 1.

Qualification of the activities of a foreign company as an imaging or not forming a permanent representation is determined by:

the position of the Ministry of Finance of Russia as a competent authority to explain the provisions of agreements on the avoidance of double taxation, including on the issues of the formation of a permanent representation;

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 districts, revising the decision of the courts of first and appeal instances and forming judicial practice 2.

Under the permanent mission of a foreign company, a branch, representation, office, office, office, agency, agency, any other separate division or a different place of activity, through which the organization regularly carries out entrepreneurial activities in Russia related to:

use of subsoil and / or other natural resources;

work on construction, installation, installation, assembly, maintenance and operation of equipment;

selling goods from russian territory warehouses;

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

The Tax Code of the Russian Federation determines the three main signs of a permanent representation (Article 306 of the Tax Code of the Russian Federation):

the presence of a separate division or other employment in the territory of the Russian Federation;

exercise by the foreign organization of entrepreneurship in the territory of the Russian Federation;

implementation of such activities on a regular basis.

In Russian legislation, the definition of the concept of "the company's work" is absent. Model Convention OECD 3 Under the Company's Place ("PlaceOfBusiness") implies any premises, means or installations used for business. And it does not matter whether they belong to the company or rented. It can also be any space, without a premises: a representative of a foreign company conducts meetings, concludes contracts, stipulates essential conditions, and it all in itself already creates a place of activity. In addition, the place of activity may be at another enterprise where a foreign company is constantly at its disposal some premises. A permanent venue can be recognized by any form of the presence of a foreign company in another country.

As an example in the comments to the OECD Model Convention, the following situation is given. A foreign company commits his employee to another country in a counterparty company. An employee lives abroad for a long time, works at the counterparty office, controls the fulfillment of its obligations, decides on the spot questions related to the execution of contracts. Although the second-hand employee uses a stranger office, nevertheless, the latter can be recognized as a permanent office for tax purposes, since the company has a "permanent place of activity" in another country.

The definition of entrepreneurial activity is given in the Civil Code of the Russian Federation: entrepreneurial is an independent, activities carried out to the systematic profit from the use of the property, sales of goods, work, or the provision of services by persons registered in this capacity in the manner prescribed by law (h. 3 p. 1 Art. 2 of the Civil Code of the Russian Federation).

The third sign of a permanent representation 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 the company carries out or intends to carry out activities in the territory of the Russian Federation for a period longer than 30 calendar days Continuously or in a totality of a year, this suggests that it is obliged to register with the tax authority at the place of implementation of 4.

Thus, the activities of a foreign company leads to the formation of a permanent representation while the specified signs are simultaneously.

Foreign company will be considered as having a permanent representation if it is:

conducts supplies 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 her behalf;

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

In compliance with such criteria, the activities of a foreign company leads to the formation of a permanent representation. In this case, the company is obliged to register in 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 Company's incorporation country, then the norms of this agreement should be applied, since they have an advantage over the norms of national legislation (Article 7 of the Tax Code of the Russian Federation). In addition, as a rule, international agreements on the avoidance of double taxation provide more advantageous tax regimes than local legislation 6.

If there is no agreements on the avoidance of double taxation, then in the taxation of such a permanent representation should be guided by the norms of the current Russian legislation (ch. 25 of the Tax Code of the Russian Federation "Income Tax").

Avoidance agreements apply to taxes such as income tax, on property, on capital gains, NDFL. The exception is the indirect tax of VAT and the land tax, which is local.

Tax reporting of a foreign organization

Any permanent representation by registering in the territory of the Russian Federation is obliged to comply with laws regarding mandatory accounting 7 and maintain tax accounting in accordance with ch. 25 NK RF. To do this, an account policy should be developed.

For accounting, there is one exception: if a foreign organization conducts accounting in accordance with international standards financial statements (hereinafter - the IFSO), which are approved by the IFRS Council, it can be exempted from accounting in accordance with Russian rules. To do this, it is necessary to inform the tax authorities that the company plans to keep records of IFRS.

Concerning tax accounting, there is no exceptions here. If it is supposed to pay an income tax, accounting policies should be spelled out, which will be applied in the future.

Profit Tax

If a foreign company leads to Russia, leading to the emergence of a permanent representation, it is obliged to pay income tax. In accordance with ch. 25 of the Tax Code of the Russian Federation Foreign organizations are taxpayers (Art. 246 of the Tax Code of the Russian Federation).
The objects of taxation of such companies are listed below:

revenues received from the implementation of entrepreneurial activities in Russia through a permanent representation, less expenses made by this permanent representation;

revenues from ownership, use and disposal of the property of a permanent representation less expenses related to obtaining such income (depreciation, communal payments etc.);

other revenues from sources in Russia relating to permanent representation (for example, ownership of securities and receiving dividends on them).

The procedure for calculating the tax base of the permanent representation of a foreign organization is made in accordance with Art. 307 Tax Code of the Russian Federation 9.
The tax period recognizes the calendar year, the reporting period - the quarter, half of the year, 9 months (Art. 285 of the Tax Code of the Russian Federation).

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

A foreign organization is entitled to take into account for the purpose of taxation of the costs only in the event that it receives income from business activities in the Russian Federation through a permanent representation recognized for tax purposes. If there is no entrepreneurial activity, the foreign company is not recognized as a permanent representation for tax purposes and has no right to take into account the costs of Russia.

The presence or absence of a permanent representation for tax purposes is determined by the taxpayer independently. If he has difficulties with the definition of such status, you should send a request to tax inspection.

If a foreign company does not form a permanent representation in the Russian Federation, but receives relevant income from sources in Russia, such as dividends, interest on borrowed funds, revenues from real estate property, from renting property, fines and penalties for violation of contract conditions, etc. (paragraph 1 of Art. 309 of the Tax Code of the Russian Federation), in this case, a foreign company is recognized as a fee for income tax. But at the same time, the income tax will hold the tax agent (the company that pays this income) 12.

The tax agent is obliged to keep income tax at the corresponding rate (Art. 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 in the tax service.

Accordingly, a foreign organization that does not carry out activities in Russia will receive the amount under the contract (contract) minus the appropriate tax.

Value added tax

If we consider a foreign company with a permanent representation in Russia, it will also be recognized by the taxpayer (Art. 143 of the Tax Code of the Russian Federation) on VAT and pay this tax in the manner and deadlines (Article 174 of the Tax Code of the Russian Federation), which are established for conventional Russian organizations. .

If the company pays VAT in Russia from the cost of the work provided, services, then it, accordingly, has the right and adopt to deduct the relevant taxes on purchased goods, works, services, report to the tax inspection 14 and pay the appropriate amount into the budget.

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

On income paid to foreigners, and the depreciated VAT sums, the tax agent informs the tax service.

Property tax

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

If the company does not forms a permanent representation for tax purposes, property tax from movable property is not paid. But if the property has real estate, then the company becomes a payer of property tax (Art. 379 of the Tax Code of the Russian Federation).

The tax period is the calendar year, the reporting - quarter, half of the year, 9 months (Article 379 of the Tax Code of the Russian Federation). After each reporting and tax period, the taxpayers are obliged to submit to the tax authorities reporting (Art. 235 of the Tax Code of the Russian Federation).

Unified social tax

The Russian Foreign Company will pay through its permanent representation if she has employees with whom employment contracts are concluded (Art. 235 Tax Code of the Russian Federation).

Payments accrued to a foreigner working under the employment contract are subject to the ESN regardless of the status of the employee (constantly or temporarily living in Russia), the place of conclusion of the contract, as well as no matter where payments are accrued and produced (abroad or in the territory of the Russian Federation ) fifteen .

Tax is subject to payments and other remuneration accrued in favor of individuals on labor and civil law agreements (Art. 236 of the Tax Code of the Russian Federation).
Tax I. reporting periods (Article 240 of the Tax Code of the Russian Federation), rate, tax declaration (Art. 243 of the Tax Code of the Russian Federation), reporting deadlines (Art. 243 of the Tax Code of the Russian Federation) - All this corresponds to the order with which ordinary Russian taxpayers work.

Income tax of individuals

A foreign company is obliged to carry out the incidence of NDFL in cases where it pays income to individuals (Art. 207 of the Tax Code of the Russian Federation). The tax rate depends on the resident of the individual. The resident is a person who is located on the territory of the Russian Federation at least 183 calendar days for the next 12 months in a row. The resident is held for the resident at a rate of 13%, for a non-resident - 30% (Art. 224 of the Tax Code of the Russian Federation).

Permanent representation regardless of the status is a tax agent regarding payments in favor of individuals.

The object of taxation is the income received by taxpayers from sources in the Russian Federation on 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 recognizes the calendar year (Art. 216 of the Tax Code of the Russian Federation), the reporting period (Art. 230 of the Tax Code of the Russian Federation) is no later than April 1 of the year following the existent tax period (Art. 230 of the Tax Code of the Russian Federation).

Land tax

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

The land tax is paid until February 1 of the year following the expired tax period (Art. 398 of the Tax Code of the Russian Federation). Once a year, without advance payments (Art. 393 of the Tax Code of the Russian Federation). Declaration 16 is filed.

Transport tax

The object of taxation occurs when a foreign company (Art. 357 of the Tax Code of the Russian Federation) acquires or takes access to the vehicle (car, aircraft, yacht and other water or air vehicles) (Art. 358 of the Tax Code of the Russian Federation).

There is a duty to register a vehicle within 30 days from the date of purchase, receipt to use or disposal.
The tax is paid once a year (Article 360 \u200b\u200bof the Tax Code of the Russian Federation) until February 1 of the year following the expired tax period (Art. 363.1 of the Tax Code of the Russian Federation). Tax rates are determined by local legislation.

Upon expiration of the tax period, taxpayers are submitted to the tax authority at the location vehicle Tax Declaration on Tax 17.

Commercial activities of a foreign company without the formation of a permanent representation

A number of cases are registered in the Tax Code of the Russian Federation when, when conducting activities in a foreign company in Russia, a permanent representation is not formed:

ownership of securities, shareholders in the capital of Russian organizations, as well as other property in the absence of other necessary signs of permanent representation (paragraph 5 of Art. 306 of the Tax Code of the Russian Federation);

conclusion of an agreement of a simple partnership or other agreement involving the joint activity of its parties, fully or partially implemented in the Russian Federation (paragraph 6 of Article 306 of the Tax Code of the Russian Federation);

providing a foreign personnel to work in Russia in another organization in the absence of other signs of a permanent representation (paragraph 7 of Article 306 of the Tax Code of the Russian Federation);

the implementation of operations on the importations into our country or export of goods from it, including within foreign trade contracts, in the absence of other signs of permanent representation (paragraph 8 of Article 306 of the Tax Code of the Russian Federation)

Also, the activities of the foreign company will not be considered as leading to the formation of a permanent representation, if it is carried out in the territory of the Russian Federation through a broker, a commissioner, a professional participant in the securities market or through any other person that acts within the framework of the usual primary (normal) activity (independent agent ) eighteen .

In determining the tax base for income tax at the commissioner, property revenues are not taken into account (including cash) who received in connection with the fulfillment of obligations under the Commission agreement, with the exception of commission remuneration (sub. 9, paragraph 1 of Art. 251 of the Tax Code of the Russian Federation). And all acquired transactions belongs to Committee (Art. 996 of the Civil Code of the Russian Federation). The costs incurred by the commissioner are subject to compensation by a committee. Consequently, the income profit is not a commissioner, but the Committee, which is subject to taxation on the laws of the country of incorporation.

Mediation scheme for tax optimization

The activities of the Committee may be recognized as leading to the formation of a permanent representation and will be subject to taxation in Russia, if the tax authorities will be able to prove that the commissioner, acting within the framework of the Commission's agreement, has the right to discuss the essential conditions of contracts with buyers.

The risk of recognition of a permanent representation will be minimized and tax obligations on income tax will not arise if the commissioner demonstrates that it has the authority to sign contracts, and all decisions take the Committee, and the commissioner performs exclusively intermediary functions against several partners (committees), And his activity is the main and usual.

Thus, given the norms of Art. 306 of the Tax Code of the Russian Federation, foreign companies can carry out their activities in Russia without forming a permanent representation, and therefore may not have a tax status and not pay income tax.

1 Tax law / Ed. S.G. Pepliaev. M.: ID FBK-PRES, 2000.
2 Ovcharova E.V., Herkina N.A. Permanent representation of a foreign organization in Russia: arbitrage practice and optimization analysis // Glavbukh, January 18, 2007 URL: http://www.glavbuh.net.
3 comments to the OECD Model Convention on Income and Capital Taxes (Model Convention with Respect to Taxes on Income and On Capital), COMMENTARY ON ARTICLE 5.
4 paragraph 2.1.1. Provisions on the features of accounting in the tax authorities of foreign organizations approved by the Order of the Ministry of Agriculture of Russia of 07.04.2000 No. AP-3-06 / 124.
5 Popportovsky O., Kutyaeva O. International Taxation: Advantages and Risks of using agreements on the avoidance of "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 a foreign company in Russia // Practical tax planning, 2008, No. 1.
7 Federal Law of 21.11.1996 No. 129-FZ "On Accounting"; Regulation on accounting and accounting 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 of 09.12.1998 No. 60N).
8 Accounting policies for accounting purposes - PBU 1/98 "Accounting Policy" (order of the Ministry of Finance of Russia of 09.12.1998 No. 60N).
9 Akilova E.V. The calculation of the tax base, the calculation of the tax amount payable to the permanent representation // 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 a tax return on the income tax and the procedure for its fill."
11 Order of the MNF of Russia dated 04/14/2004 No. SAE-3-23 / [Email Protected] "On approval of the form of tax calculation (information) on the amounts paid by foreign organizations of income and retained taxes."
12 Potemene E.O. The fulfillment of the functions of the tax agent regarding the payments of a foreign revenue organization not related to permanent representation // Accountant and Law, 2008, No. 6.
13 came S.A. Permanent representation of a foreign organization for income tax purposes (Article 306 of the Tax Code of the Russian Federation). Significant signs // Site of the legal bureau "Legistraffic", May 31, 2009.Url: http://www.ukrat.ru.
14 Order of the Ministry of Finance of Russia dated November 7, 2006 No. 136n "On approval of the form of the tax return on value added tax and the order of its fill."
15 Perebidosno Yu.A. Tax features of permanent offices of foreign organizations // Accounting Bulletin, 2007, No. 9.
16 Order of the Ministry of Finance of Russia of September 16, 2008 No. 95n "On approval of the forms of the tax declaration and a tax calculation on advance payments for land tax and the orders of their fill."
17 Order of the Ministry of Finance of Russia dated April 13, 2006 No. 65n "On approval of the form of a tax return on transport tax and the procedure for its fill."
18 Sokolova I.N. The fulfillment of the functions of the tax agent regarding the payments of a foreign revenue organization not related to permanent representation // Taxes (newspaper), 2006, No. 32.

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Seminikin V.V. The order of taxation of the property of foreign organizations in the Russian Federation // Headbug, January 18, 2007 URL: http://www.glavbuh.net.

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Timin E. How to choose the optimal form of a foreign company in Russia // Practical tax planning, 2008, No. 1.

Developing russian market It is quite attractive for foreign enterprises, the purpose of which is to develop and expand outside their country. Therefore, there is nothing unusual that management decides to open a branch or representation of a foreign company in Russia. At the same time, one of effective toolscapable of improving the economic situation of any state, the policy of attracting foreign investment in its economy. But in order to carry out commercial activities in our country and investing capital, foreign organizations are needed appropriate guarantees, including the scope of taxation. Legal status separate divisions 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.

The creation of a representative office or a branch of the company in Russia implies an independent active business management by a foreign company - one should not confuse a similar approach with passive investment in Russian organizations.

Control of the functioning of separate divisions of foreign firms in Russia is conducted in accordance with the provisions of the Federal Law "On Foreign Investments in the Russian Federation" from 09.07.1999 No. 160-FZ. More precisely, the action of the law applies exclusively to branches of foreign organizations.

It speaks of opening in Russia (commercial companies from) and branches, and nothing is said about the establishment of representative offices (because nothing is investing in the economy of Russia). Accordingly, there is no representative office in the text of the law, and the legal regime is not established for it even in the case of accreditation.

And the representative office and the branch is a separate division of a legal entity, which is beyond the location of its location, only the duties of the first include the presentation of interests (and the implementation of their protection) of this legal entity, the task of the second is to implement the functions of this legal entity (or only a certain part of them ) And his representation.

None nor another form in itself is a legal entity and does not have legal capacity: their legal status will be regulated by the right of the state in which the head office was registered. Separate divisions are managed by the property of the established legal entity and work in accordance with the provisions approved by it.

In other words, despite being found on the territory of the Russian Federation, representative offices and branches of foreign firms will be subject to the laws of the country location of the head organization regarding:

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

However, before the unit begins to function in general, it will be necessary to obtain the resolution of the Russian authorities, that is, to take accreditation. When representative offices or branches are accredited, they should also be recorded in the federal tax service to control the tax deductions committed to the budget of Russia.

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 the branch in Russia, which are not contrary to the laws of the Russian Federation:

• complete name (foreign head company and branch itself);
• organizational and legal form of management;
• address of the branch location;
• legal address of the head office;
• goals that pursue the leadership of the branch;
• activities;
• size, composition and time of capital investment;
• management rules.

Information and representative offices and branches of foreign organizations should be listed in the consolidated state Register Representative offices and branches of foreign firms accredited in the Russian Federation. Proof of inclusion in the registry is the availability of the Company's division of the appropriate certificate as a guarantee of confirmation of the official status of a foreign firm on federal levelSince without him it will not be possible to open an account in the bank, carry out transportation through customs and.

Optimal form of business management by a foreign company in Russia

Forms of doing business in the territory of Russia foreign organizations may be different. Foreign management Company Must have a representative office or a branch in Russia or to do without it, for example, hiring a resident of the resident of the Russian Federation, signing contracts directly with counterparties from Russia, etc.

There is also an option to open a subsidiary of resident and business management through it. The competent choice of the form of entrepreneurship organization will help avoid damages related to the payment of taxes, the amount of which could be lower, or the payment of which could be avoided at all.

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

• there are in the form of a separate division separately from the parent company and function in accordance with its norms;
• the parent company replies to financial Plan for their actions;
• management is endowed with the powers of a foreign company-founder in volumes prescribed in the prescribed power of attorney;
• enjoy the share of the property of the head company, taken into account by separately from the company;
• do not possess independent legal capacity, are not recognized by legal entities and make actions on behalf of the founding company;
• created and eliminate by decision of the head office;
• do not necessarily compile accounting reporting.

Despite the large number of general moments, representation and branch is not the same thing. A branch of a foreign firm is characterized by a broader list of functions compared with the representation, since it has authority not only to represent the interests of the company and their protection, but also to the exercise of the same economic activity as the foreign founder.

Let's spend comparative analysis Taxation various shapes Activities of a foreign organization.

Form of activity	VAT	Profit Tax	ESN	Property tax
Subsidiary	It is calculated on a general basis, you can select the USN mode.	24% (you can choose USN - 6%, 15%). Tax Cover Object - Revenues received through branches in Russia (can be taken into account the revenue and expenses arising abroad, but related to the work of the branch), minus the costs of these branches	It is calculated on the general basis, you can select the USN mode
Permanent Mission (branch, office, bureau, agency, office, etc.)	Calculated on a general basis, there are nuances regarding the taxation of the services	0.24	Calculated on the basis of
Without permanent representation	The incoming is held with a tax agent from the income taxable VAT. Outgoing - 0%	With revenue from entrepreneurship is not held. In other cases, held by the tax agent (up to 20%)	No (the company is not a taxpayer)

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

1. Resident's subsidiaries pay all taxes at standard rates, but they have the right to apply a special tax regime. They also have the opportunity to use international tax planning.
2. Conducting a business without establishing a permanent representation in Russia only the companies whose work in the Russian Federation is episodic, since such a form of activities has a limited scope of application, although it implies a small tax burden.
3. The creation of a permanent representation is not advantageous in terms of taxation due to the fact that it will have to pay all taxes approved by tax legislation of the Russian Federation without the right to transition to a special payment of their payment.

If you choose between a branch and representation, it is necessary to decide for what purpose a separate unit is created, - to conduct full-fledged activities and implement all the same functions as a headquarters abroad, or only for the presentation and protection of the interests of the Head Office. In the second case, it is enough to establish a representative office, and in the first case it is not necessary to do without opening a branch in the territory of the Russian Federation.

Features of the opening of a branch of a foreign firm in Russia

The branch is sometimes called a permanent representation, these are identical concepts, but the keyword here is "permanent". This is recognized as a representative office that regularly conducts entrepreneurial activities in the Russian Federation, having a relation:

• to the sale of goods from their own warehouses located in Russia;
• to carry out work on construction, installation, installation, commissioning, assembly, operation, equipment maintenance in harmony with concluded agreements (slot machines may be understood);
• to the operation of subsoil and / or other natural resources;
• to carry out any other works, besides listed in clause 4 of Art. 306 Tax Code of the Russian Federation.

Branches of foreign organizations that have passed accreditation in Russia are characterized by the following features of activities:

• Branches are entitled to engage in entrepreneurship.
• Branches like N. legal entities:
  • not eliminated due to bankruptcy;
  • no authorized capital;
  • do not make up accounting statements;
  • do not pay VAT for lease of residential and office premises without furniture and equipment;
  • do not consolidate tax declarations.
• The branch is not a resident in terms of currency legislation.

Some areas of activity of foreign organizations are monitored by the Russian authorities in a special way. An example is the work on the territory of Russia foreign insurers.

The conditions for the activities of branches of foreign insurance companies are more stringent compared to other activities due to the desire of the Russian authorities to maintain and develop the National Insurance Market, and this requires the tight regulation of the integration of foreign capital into this sphere.

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

In addition, foreign firms are prohibited:

• life insurance;
• mandatory insurance (including state);
• insurance of property related to state supplies and implementation of contractual work;
• insurance of property interests of municipal and state-owned enterprises.

9 years after Russia's accession to the WTO (August 22, 2012), foreign organizations will be able to create direct affiliates in Russia if the assets of the company as a whole will be more than $ 5 billion as of the end of the year before the application of the branch establishment.

Many also worries if a branch of a foreign company is a declarant. The Customs Code among others recognizes declarants:

• foreign legal entities in case they are official representative offices of foreign countries or transport certain goods (in accordance with international agreements of the Russian Federation);
• foreign firms found in the territory Customs Union Representation and importation of some products for personal needs of the Representative Office.

Features of the opening of the representative office of a foreign firm in Russia

Representation is engaged in the presentation of the interests of a legal entity and their protection, but the answer to the question is whether the representative office of a foreign company is a legal entity will be negative.

Usually the purpose of the functioning of the representative office is:

• promoting 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 promoting goods, works, services of a foreign organization;
• marketing research;
• distribution of information about the head office;
• search for customers among Russians;
• study of business contacts;
• conflict resolution.

Representative offices of foreign organizations in Russia have limited goals: foreign trade or economic activities They can not have any transactions independently conclude.

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

1. The presence of VAT benefits regarding the rental of premises (if the benefits are mentioned in an international agreement).
2. Accounting is carried out only to calculate tax liabilities, no more.
3. Exemption from certain customs duties - for the period of accreditation in the Russian Federation, the fee is not charged for the importation of the property required for the work of the Representative Office.
4. The facilitated procedure for registration of foreign labor - representation is not obliged to obtain permission to hire accredited foreign workers.

Work of a foreign organization in Russia without representation

Any representative of foreign businesses, however, not only foreign, working in another country, seeks to minimize their costs, so it is extremely to know if a foreign company can work in Russia without representation. After all, even without establishing representative offices in Russia, foreign companies can extract income from activities on its territory, for example, concluding contracts with domestic organizations directly.

Russian authorities are very well aware of this, therefore, measures were taken on the indirect taxation of the activities of foreign firms. Although they do not pay taxes (for example, ESHN and property tax) as taxpayers who have staging, however, this makes them a Russian company with which cooperation is underway. In this situation, it will be a tax agent of a foreign partner.

A list of income of foreign firms has been formed, from which taxes are paid through the source of payments:

1. Funds after the property section.
2. Dividends from participation in Russian joint-stock companies.
3. Interest on the debts of third parties.
4. Profit from the implementation of shares.
5. Funds from the use of intellectual property facilities in the territory of the Russian Federation (foreign cinema in Russian cinemas, for example).
6. Revenue from international transport (with at least one point of acceptance and sending in Russia).
7. Money transfers from sales or rental of personal property (property should be the property of the company and be located in Russia).

One of the ways to reduce costs in such a situation is the registration of IP instead of the representative office of the foreign company by the resident of Russia, which will be implemented by representative functions.

Often this happens more profitable in terms of taxation and is definitely easier in relation to documentary. FROM individual entrepreneur The agency agreement is lied or a contract, after which it, according to the terms of the agreement, 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 be preceded by the start of the foreign company. To do this, contact the Ministry of Internal Affairs of the Russian Federation No. 47 in the city of Moscow: since 2015 it is it is authorized to accredit branches and representative offices of foreign firms in the territory of the Russian Federation.

If a separate division of a foreign firm is going to carry out activities in the field of civil aviation, to seek accreditation Federal Agency air transport.

Representative offices of foreign credit companies should be accredited by the Bank of Russia (issuance of a certificate of making a record in the state register of accredited offices, nevertheless, is engaged in the FTS of Russia).

And in the case of aviation, and with credit companies it is necessary to personal accreditation of foreigners planning to work in the branch or representative office established in the territory of the Russian Federation. This issue is engaged in the Chamber of Commerce and Industry of the Russian Federation.

If a foreign company (company) is going to open a representative office in Moscow, then this procedure, unlike in other regions of the country, does not imply a preliminary registration of a document confirming the coordination of the placement of a separate division on the territory of the subject of the Russian Federation with local bodies authorities.

The main stages of the creation of a foreign representation in the Russian Federation

The procedure for the registration of credit organizations with foreign investment in Russia seems to be rather long and complex and consists of the following steps:

• preparation of the necessary documentation;
• appeal to the body with powers to accredit companies with the selected activity, submission of documents (the procedure includes the certification of the number of foreign personnel of the Chamber of Commerce and Industry);
• waiting for the issuance of permission to establish representative office and certificate of introduction to the consolidated state register of accredited offices;
• printing;
• appeal to 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 Rosstat;
• registration in extrabudgetary funds;
• opening a bank account and notification of this tax service.

Accreditation of foreign companies in Russia

Registration of representation or branch of foreign legal entities in the territory of the Russian Federation is impossible without prior passage of accreditation.

Accreditation is recognition and confirmation legal status Separed division of foreign organization.

Today, there is no single body in Russia that would be accredited, and therefore this duty is delegated to various state structures, depending on the activities of the foreign company.

Until 2015, the accreditation of foreign missions and branches were engaged:

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 are transferred to the Federal Tax Service (MIFNS No. 47).

Stopping a representative office of foreign firms for tax accounting

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

A separate division of the company that will function in Russia is obliged to register in the registering tax authorities within 30 days. This procedure is approved by the Ministry of Finance of the Russian Federation, but its violation does not provide for punishment, including a fine.

All without exception, branches and representation of foreign firms are obliged to register in the tax service of the region of the Russian Federation, in which its activities are actually carried out or vehicles and real estate are provided.

If work is carried out immediately in several districts, each of them needs to be registered in the local inspection of the FTS.

The change of the legal address of the representative office of a foreign company involves the adjustment of registration data: FTS employees should be notified in a timely manner. If we are talking about the transfer of the company into the territory of another subject of the Russian Federation, you will have to remove it from tax accounting and to re-record in the UFNS region, which the company has chosen to carry out commercial activities.

Important: If the representative office / branch or the most foreign company has changed or information is changed, which are included in the consolidated registry, the management of a separate division is obliged to notify the registering authority and make changes to the register no later than 15 calendar days from the date of the loss of relevant information.

It should be noted that the basis for registration in the Federal Tax Service of Russia is not only the opening of the foreign company division in the Russian Federation, it is possible to include the purchase of real estate or vehicles in Russia, including imported accounts to the country, the opening of accounts in Russian banks and the extraction of profits from sources In Russian federation.

In the process of registration, the tax authority is assigned to a foreign company at the same time TIN and CAT, but sometimes instead of the INN indicates KIO (foreign organization code). Both codes are designated at the completion of the certificate registration procedure (in form 2401IMD).

Statement of representation of a foreign firm for accounting in extrabudgetary funds

After the foreign company has opened its representative office in the Russian Federation, it has established all relations with the tax service, it should be registered with extrabudgetary funds - the Pension Fund and the Social Insurance Fund, to which the law has been allocated 30 days from the date of registration.

The procedure for registration takes 5 days, if any of the required documents will not be presented, the process will delay for a longer period due to the request for information in such a situation in the IFTS and the Russian Rosstat branch.

At the request of the representation / branch is assigned, as well as all legal entities in Russia, statistics codes:

• OKPO,
• Skogo
• OKATO
• OKVED,
• Oxf
• OKOPF.

It is not necessary to submit any documents to the Compulsory Medical Insurance Fund (FOMS): data on the branch / division will provide a pension fund.

Printing for a branch / representation of a foreign organization in the Russian Federation

The print office of a foreign company cannot be made on the basis of preferences and decisions of the founders or managers of separate divisions in the territory of the Russian Federation. The sketch of the seal of the created branch or representation should be first registered in the Ministry of Internal Affairs of the Russian Federation, for which it will be necessary to prepare the following set of documents:

1. Application for printing.
2. Document on the approval of the sketch (for example, the order of the head of a separate division).
3. A notarized copy of permission to establish a representative office.
4. A notarized copy of the certificate of information on the division of a foreign firm into the consolidated register of accredited institutions.
5. Regulations on the branch or representation (notarial copy).
6. Copy of the chapter of the division.
7. Power of attorney issued on the head of a separate division.

The manufacture of printing will begin only after a room has been assigned in the urban registry of the seals (is issued, as a rule, by the manufacturer - an organization accredited at the Moscow Registration Chamber). It will be necessary to present two notarized copies:

1. Permits for the establishment of a separate division of a foreign company.
2. Certificates of entering into the consolidated Gospectra.

The whole procedure for assigning the number and printing is not more than 3 days. Minimum cost This service is 100 rubles and depends on the snap, the method and urgency of the manufacture of printing.

Opening a current account in the Russian bank

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

The opening of bank accounts in order to commit fiscal operations with separate divisions of foreign organizations involves the submission of additional documents:

• provisions on branch / representation;
• power of Attorney, issued by the head of a separate division.

In addition to the above securities, to open a current account in a bank, a foreign legal entity will also need to collect a standard set of documents. The powers to open accounts (ruble and currency) are available at the head of a separate division of a foreign company.

To learn about the full set of necessary documents for opening an account by a foreign firm division in the Russian Bank, read the information about.

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

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

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

1. Extract from the register of legal entities of the state in which the organization registered, the certificate of incorporation (or other document, which contains information about the registration issue, the date, place of registration, registering the authority and is issued in a foreign state when registering).
2. The decision to establish a branch / representation or a copy of the contract, on the basis of which work is underway on the territory of Russia (with the signature of the head of the branch or other authorized representative).
3. The power of attorney issued to the appointed head of the new branch / representation, empowering it with the relevant authority (usually we are talking about the general power of attorney, which abroad is indefinite, but it is recognized by the Russian authorities in the current only 1 year).
4. Ordinary power of attorney to a representative of a foreign firm, which submits and receives documents (if it is not the head of the branch).

Additional set of papers for presentation to the accrediting body:

1. Statement B. writing In the MIFNS number 47 in Moscow (form 15AFP) with the signature of the head of the branch / representation or persons with authority to assign documents.
2. Constituent documents (charter) of a foreign organization.
3. The certificate obtained from the authorized body of the state in which the head office of the foreign company is opened, on the registration of the organization as a tax fee (must contain the taxpayer code or its analog).
4. A copy of the identity card and certificate of registration with the tax authority (INN, if there is) the head of the representative office or branch.
5. Card information about the representation or branch of a foreign organization.
6. Lettering letters of Russian business partners (minimum 2).
7. The document proving that the location of the branch / representative offices of a foreign company beyond the boundaries of Moscow was agreed with local executive authorities.

An additional set of documents for presentation to registering bodies for registration with the tax authority:

1. Application for formulation of a foreign organization for tax authorities (2001).
2. Regulations on branch or representation.
3. Charter of the Foreign Firm Founder.
4. Help from the state tax service, in which there is a head office of a foreign company, that the company under consideration pays taxes. Must contain the taxpayer code or analogue replacing it (from the moment it is issued and before presenting to the Federal Tax Service of Russia, Russia must pass no more than six months).
5. Permission to create a branch or representation.
6. Certificate of introduction to the consolidated register of accredited offices.

Other documents Tax authorities of Russia require no right.

Additional set of papers for providing extrabudgetary funds:

1. Application for registration in extrabudgetary funds.
2. Regulations on the branch / representation.
3. A copy of the certificate of registration in the tax service in Russia (certified in the notary).
4. Permission to create a branch / representation in the territory of the Russian Federation.
5. Certificate of introducing information about the branch / representation in the consolidated register of accredited representative offices.
6. Statistics codes assigned to the division of a foreign company.
7. Documents confirming information about legal addresses (Usually a warranty letter).
8. Order on the appointment of an accountant or a certificate of the absence of an accountant in a foreign organization division.

Documents provided by foreign companies in Russian state institutionsare valid for 12 months from the date of issue.

The documents should be indicated the following information About the foreign company and its divisions established in the territory of the Russian Federation (if there are no such information in the papers, they should provide their civil servants of the Russian Federation as additional data):

• direction of the organization and its divisions;
• the location of the foreign company;
• contact details of the company itself and divisions located in Russia ( email, address of the Internet resource, phone);
• information about the head of the Organization, the founder of the head office (as a physical or legal person - registration number, registration day, name and address of the registering authority, tax payer code), head of representation or branch (Passport details, registration address, date and place of birth, Inn );
• full name of the serving banking institution, the number of the current account, the Swift code;
• the size of the authorized capital;
• the number of employees and the planned number of foreign employees of the branch / representation in Russia;
• revenues for the previous year;
• russian business partners.

Legalization and translation of documents of foreign companies

Each foreign document must have an apostille or genuine legalization mark in consular clutch.

All papers are submitted to Russian government agencies translated into Russian, and the translation must be implemented by the organization accredited for this, and then certified by the notary or consulate of the country of origin.

Power of attorney and solutions should have a notarization of the signatures contained in them and the authority of the signed.

With some states, Russia has concluded agreements that cancel the legalization of documents. If the country of incorporation is a participant in such an agreement, legalize paper when doing business in the territory of the Russian Federation it is not required.

Cost and timing of the procedure for registration of a foreign representative office in the Russian Federation

For accreditation of each branch open in Russia, the head office of a foreign organization will have to pay the state duty, the amount of which is 120 thousand rubles for any accreditation period. For the accreditation of representation duty is not charged.

The timing of consideration of documents will be:

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

The surcharge of the State Registration Chamber for urgency (the willingness of the testimony within 5 days) is 15 thousand rubles, the Chamber of Commerce and Industry is not conducted.

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

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

Tax authorities of Russia are registered with a foreign company as a taxpayer within 5 business days.

The process of obtaining permits for attracting a foreign labor force by a branch of a foreign company may take 3-12 weeks. Terms depend on the type of work permit.

Head of a foreign separate division, his rights and obligations

A foreign citizen may be appointed to the position of head of the branch or representation of a foreign organization located in Russia, solely after. It is also necessary to obtain a special permit for attracting foreign personnel to work in a branch of a foreign company (may be issued only at the end of the accreditation procedure).

Representing the interests of a foreign legal entity, their protection, the fulfillment of orders from the head office, ensuring the functioning of a separate division in Russia - the main objectives of the head of the branch / representation of the foreign company.

The executive body (general director) of the head office should issue an order for the appointment of an individual to the position of the manager who conclude labor contract, negotiate remuneration for work.

The salary of the head of the representative office of a foreign company will depend on the scale of the foreign organization and the volume of responsibilities assigned to it.

Any action by the head of a separate division of a foreign firm makes on the basis of a power of attorney issued to him and the provision on the branch / representation on behalf of the founding organization.

The text of the branch / representation approved by the Office of the Foreign Company is set out the procedure for managing a branch / representation describing:

• management procedure in details;
• method, rules and timing of bringing orders to the management companies to the heads of divisions;
• clear instructions on who is subject to the head and to whom it is reported;
• the procedure for carrying out inspections of managers.

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

• design date;
• list of authority of the head;
• his right to solve issues arising in the process of operational and current work;
• his right to sign contracts, making transactions (the amounts of contracts can be limited, restrictions on the subject of the agreement, etc.);
• the right to the opening of the current account in the banking institution (ruble or currency), the disposal of money;
• his right to issue power of attorney and transferring its authority in case of unforeseen situations, the conditions of such actions.

The change of the head of the representative office is not a personal decision of the founders of the head office, the controlling the activities of the unit must be notified about this event. russian structures. Information about this should be documented, on its basis, appropriate changes will be made to the consolidated register of accredited units.

Accounting and reporting of foreign missions

After registration, a separate division of a foreign organization is obliged to maintain accounting records, namely to be 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 was established.

Closing a foreign representation or branch in Russia

The elimination of a representative office or a branch of a foreign firm is a procedure aimed at terminating the activities of the unit and withdrawing it from accounting in the tax service.

The closure of the representative office of a foreign organization in Russia should be held according to the rules provided for current legislation RF.

The grounds for termination of the Office may be:

1. The end of the accreditation period, the extension of which did not take care on time.
2. The closure of the head office in the state where it was registered.
3. Systematic violations of Russian laws by divisions of a foreign organization and the subsequent decision of the accreditation authority on their liquidation.
4. Termination of an international treaty between Russia and the state where the company opened in the Russian Federation on the basis of this Agreement is registered.
5. The decision on the closure of the representative office adopted by the founders of the head 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 in which the following information is indicated:
  • causes of termination of economic activities;
  • registration number;
  • accreditation day;
  • permit validity.
• Create a statement in form 11CN-record.
• Make a notarized copy of the official minutes of solving a meeting on the closure of a separate division.
• Prepare constituent documents, charter of the company.
• Raise the protocols of all meetings, during which it was decided to open a branch / representation and appoint a manager.
• Make a certificate of closing the current account in the banking institution.
• Make a power of attorney to the head of the branch / representation.
• Make a power of attorney at the attorney's attorney, which will be charged with the liquidation procedure on behalf of the head office.
• To raise the earlier certificate of registration of the division in Russia indicating:
  • made changes;
  • numbers payer taxes.

To withdraw from accounting in the FIU, you will additionally need:

• statement in the form of the FIU;
• all reports to the Pension Fund for the Closing Day (2 copies of originals and copies in electronic format);
• extract or information sheet from the tax service;
• notification of deregistration in the FTS.

For removal from the accounting to the FSS will additionally need:

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

To remove from accounting in Rosstat you need to provide:

• notification with OCTEI codes;
• letter with a request to remove the division from accounting.

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

• Organization of the meeting of the founders of the head company and making a decision on liquidation.
• Registration of all required documents, including the revenue declaration and the calculation of the total amount of tax.
• Alert interested parties, including workers.
• Conducting personnel events.
• Sending notifications to the MIFNS No. 47 on the removal of the division from tax accounting and termination (within a period of not more than 15 days from the date of the decision to liquidation).
• Notification of the Regional Office Pension Fund On the closure of a branch / division (within a period of 15 days from the date of decision).
• Notification of the local division of the Social Insurance Fund on Closing (on the same time as the MIFNS, FIU).
• Passage of reconciliation in the MIFNS:
  • in the entry department (with the presentation of the income declaration);
  • in the department of cameral inspections (with the presentation of statements on the operations on the calculated account);
  • in the department for working with taxpayers and debt settlement departments (with the presentation of the registry of information on the income of employees of the division and reconciliation of tax payments);
• Applying an application to the MIFNS on the end of the closing procedure.
• Removing from accounting in the FIU.
• Removing from accounting in FSS.
• Receipt of notification of deregistration from Rosstat.
• Closing a bank account.

For consideration of documents and applications for the closure of a separate division takes 14 days from the date of supplying a set of papers into tax authorities, the total period of liquidation is approximately 30 days.

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

The Pension Fund announces its solution for 10 days, the social insurance fund will only need a week.

In general, the entire process of closing a branch or representation, starting with the preparation of documents and ending with the decision of the tax authorities and extrabudgetary funds, takes about six months.

As a foreign company to open a representative office or create a branch in Russia: video

In applying the Agreement, the competent authorities of Contracting States, in particular, are guided by comments to the model of the Convention on Taxes on the income and the capital of the Organization for Economic Cooperation and Development (OECD), in accordance with which the definition of the concept of "permanent representation" as a permanent place of business through which the enterprise conducts All or part of its commercial activities, contains:

The existence of "business places";

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

The implementation of the company's commercial activity through this fixed place of business. This means usually that persons who in one way or another depend on the enterprise (personnel) are carried out by business enterprises in the state in which a fixed place is located.

According to the provisions of Article 5 comments to the OECD Convention Model, the expression "Place of Business" includes any premises, means or installations used for business enterprise. It does not matter, belongs or are rented at the disposal of the enterprise, facilities or installations.

The place of business can also exist without premises or its need for doing business enterprises, it is enough to have some space at their disposal. The place of business can also be at another enterprise, for example, where a foreign enterprise has constantly at its disposal some of the premises or their part 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 reason to qualify the company's activities as carried out not through a permanent representation.

In order to make a permanent representation, the enterprise, using them, should conduct a full or partial business through it. Moreover, the activity does not necessarily have to be constant, that is, to be carried out without interruption in operations, but the operations should be regular.

The permanent place of business, through which the company conducts only activities, which is for the enterprise preparatory or additional, should not be considered a permanent representation. In case the company is difficult to distinguish between activities that have or not having a preparatory and additional character, the decisive criterion is the activities of the permanent place of the business, which in itself can be the main and significant part of the enterprise's activities as a whole. Where the main goal of a permanent business place is identical to the main purpose of the enterprise, it does not conduct preparatory or additional activities.

Thus, a permanent representation for tax purposes is considered to be educated if the operations constituting a creature or a significant part of the entrepreneurial activity of a foreign organization are carried out in a fixed place (space) on a regular basis. The definition of a permanent representation in Article 5 of the OECD Convention Models is close to the definition of this term, which is given in Article 306 of the Tax Code of the Russian Federation.

Example.

Foreign organization - the resident of Germany has a building located in the Russian Federation. A foreign organization for the implementation of premises for rent has created a directorate, which is engaged in the operation of this building, concludes contracts with communal services. The income from this type of activity is carried out regularly, lease agreements are concluded with a large number of organizations on the 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 on taxes on income and property dated May 29, 1996 For the purpose of agreement, the expression "Permanent Mission" means a permanent place of entrepreneurial activities, through which the company's activities are fully or partially.

When that material propertyAs facilities, premises are transmitted or rented to third parties through a fixed business place, which is contained by an enterprise one contracting state in another, then this activity makes a permanent representation from the business site. A letter of UMNS in Moscow from February 13, 2002 №26-12 / 6754.

Example.

A service agreement was concluded between the Russian Organization and the Swiss company, in accordance with which the Swiss company provides consulting and other services at the customer's enterprise. Staff swiss company For the provision of services, they are repeatedly arrived in Russia for several days and are located in the territory of the Russian Federation 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, "On avoiding double taxation on income and capital taxes", the term "permanent representation" means a permanent place of activity through which the enterprise is fully or partially carried out.

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

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

Ø Similar activities in Russia are carried out for 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 geographic point (location of the Russian organization).

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

Thus, the activities of the service firm to the Russian enterprise can lead to the formation of a permanent representation, since the commercial activity of the Swiss company is carried out for a long period of time, on an ongoing basis and is associated with a certain geographic point.

In accordance with clause 5.1 of comments to the Model Model of the OECD Convention on Taxes on income and capital, which was the basis for developing a current agreement between the Russian Federation and the Swiss Confederation on the avoidance of double taxation on income and property taxes, since essential features are observed - there is a place of activity A foreign organization through which entrepreneurial activities are regularly carried out in the territory of the Russian Federation. (Letter from the Ministry of Finance by the Russian Federation of November 23, 2001 No. 04-06-05 / 2/20).

Example.

The German company on the territory of the Russian Federation is engaged in 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 at the time of exhibitions.

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

· The provision of data services is one of the main activities of the company;

· Similar activities in the Russian Federation are carried out over a long period;

· It is conducted on an ongoing basis;

· Activities are associated with a certain geographic point (the location of the Russian organization).

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

The concept of the "Permanent Representation 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 representation, 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 by Standing representation of a foreign organization in the Russian Federation for the purpose of applying chapter 25 of the Tax Code of the Russian Federation refers to the branch, representation, office, office, office, agency, any other or another place of activity of this organization (hereinafter referred to as the department), through which the organization regularly implements the entrepreneurial Activities in the territory of the Russian Federation associated with:

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

Ø Conduct work provided for by contracts, installation, installation, assembly, commissioning, maintenance and operation of equipment, including slot machines;

Ø sale of goods from the territory of the Russian Federation and belonging to this organization or rented warehouses;

Ø The implementation of other works, the provision of services, maintaining other activities, with the exception of the provisions provided for by paragraph 4 of Article 306 of the Tax Code of the Russian Federation.

Directly from paragraph 2 of Article 306 of the Tax Code of the Russian Federation, it follows that the legislation establishes the following etc Standing Representative Office:

Ø the presence of a separate division or any other place of activity of a foreign organization in the Russian Federation;

Ø Implementation by the foreign organization of entrepreneurship in the Russian Federation;

Ø Implementation of such activities on a regular basis.

With the simultaneous presence of a combination of these signs, the activities of a foreign organization in the Russian Federation is defined as leading to the formation of a permanent representation.

It should be noted that the term "permanent representation", applied to tax purposes, is not organizational and legal importance, and the importance qualifying the activities of a foreign organization, with which the emergence of the obligation of a foreign organization to pay income tax in the Russian Federation. In this regard, such circumstances, such as the presence or lack of permission to open and extend the term of operations in the Russian Federation, representative offices of foreign legal entities (accreditation) are not values \u200b\u200bfor taxation.

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

One of the conditions necessary to create a permanent representation is the requirement that the place of activity of the permanent representation should be located in the territory of the Russian Federation.

At the same time, the NK RF does not give the definition of the concept of "place of activity". At the same time, as a rule, it is believed that the territorial and property separation should be characterized in this place of activity, since it is precisely the properties that are separate divisions, representative offices and branches. However, the provisions of paragraph 2 of Article306 of the Tax Code of the Russian Federation do not refer to these features.

Since the Tax Code of the Russian Federation is not specified, which is understood under the "permanent place of activity," according to the author, approaches developed by international practice should be applied.

We will remind, according to the provisions of Article 5 of comments to the OECD Convention Model, the expression "Place of Business" includes any premises, means or installations used to conduct an enterprise business. It does not matter, belongs or are rented at the disposal of the enterprise, facilities or installations. The place of business can also exist without premises or its need for doing business enterprises, it is enough to have some space at their disposal. The place of business can also be at another enterprise, for example, where a foreign enterprise has constantly at its disposal some of the premises or their part belonging to another enterprise.

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

Example.

A foreign organization has equipment in Russia, which rents a Russian organization. At the same time, a foreign organization systematically rents the property that belongs to it, carrying out the search for tenants, concluding lease agreements with them, concluding contracts for the current repairs and maintenance of equipment in good condition and other actions in the Russian Federation. Such activities of a foreign organization may lead to the formation of a permanent representation in the Russian Federation.

When material property (in this case, the equipment) is transmitted or for rent to third parties through a fixed place of business, the contents of one Contracting State in another, then this activity does a permanent representation from the business site. This position is also set forth in clause 2.4.1 of the methodological recommendations to the tax authorities to apply the individual provisions of Chapter 25 of the Tax Code of the Russian Federation regarding the peculiarities of the taxation of profits (income) of foreign organizations approved by the Ministry of Energy of Russia of March 28, 2003 No. BG-3-23 / 150 "On approval of methodological recommendations to the tax authorities to apply the individual provisions of chapter 25 of the Tax Code of the Russian Federation regarding the peculiarities of the taxation of the profits (income) of foreign organizations" (hereinafter the Methodical Recommendations). According to methodical recommendations, if the fact of ownership of a foreign organization in the territory of the Russian Federation itself cannot be considered as leading to the formation of its permanent representation in the Russian Federation (paragraph 5 of article 306 of the Tax Code of the Russian Federation), the use of such property in commercial purposes May under certain conditions create a permanent representation of a foreign organization.

In accordance with the norms of international agreements, the "Permanent Mission" is defined as a permanent place of business, through which the enterprise holds all or part of its commercial activities.

At the same time, the provisions of Article 5 comments to the OECD Convention Model determine that the specified business place should be "fixed", that is, it must be established in a certain place with a certain degree of consistency. It also follows that permanent representation can be considered existing only if the place of business has a certain degree of constancy, that is, if it is not temporary. Activities should not necessarily be permanent, that is, to be carried out without interruption in operations, but the operations should be regular.

Thus, the provisions of international agreements directly do not establish the requirement of the regularity of commercial activities as a significant sign for recognizing a permanent representation. At the same time, this condition is still present, since with its absence, the place of business will not be recognized as constant.

In this regard, one of the signs for the qualifications of a permanent representation is the regularity of activities both in accordance with the requirements of international agreements and on the basis of the norms 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 currently.

According to the tax authorities, regular, in particular, the activities of the separable divisions of foreign organizations that have made or obliged to register in the tax authorities in accordance with subsection 2.1 of the provisions on the participation of the participation in the tax authorities of foreign organizations. This approach is indicated in paragraph 2.2.1 of the methodological recommendations.

According to clause 2.1.1 of the provisions on the participation of the participation in the tax authorities of foreign organizations in the event that a foreign organization carries out or intends to carry out activities in the Russian Federation through a separation over a period exceeding 30 calendar days a year (continuously or for aggregate), it is obliged Regarding the tax authority at the place of activity no later than 30 days from the date of its start.

Since the obligation to fall on tax accounting arises only from taxpayers (Article 23 of the Tax Code of the Russian Federation), the tax authorities believe that in the exercise of activities in the Russian Federation, a foreign organization has been carried out by a permanent representative office in the territory of the Russian Federation within 30 days. That is, it became a taxpayer, and, therefore, it is subject to tax accounting.

It should be noted that the activities of a foreign organization in the Russian Federation within 30 days in aggregate is not the only circumstance in which the formation of a permanent representation on the basis of the regularity of activities in the Russian Federation is recognized. According to the methodological recommendations, the tax authorities determine the cost of compliance with the regularity criterion and other cases on the basis of the analysis of the actual implementation of the foreign organization itself or other organizations or individuals in favor of a foreign organization in each case. At the same time, the unit facts of making any economic operations in the Russian Federation, for example, individual facts of sale in Russia owned by a foreign organization on the ownership of real estate, cannot be considered "regular activities".

According to the author indicated Methodical recommendations practical approach tax authorities to define the regularity of activity can not serve legal foundation For the permanent representation of a foreign organization in the Russian Federation and can serve as a basis for the emergence of tax disputes.

Example.

The Russian enterprise has concluded contracts with firms - residents of Austria and Germany for the provision of services in the Russian Federation service equipment. Employees of foreign firms 1-2 times a year come to the enterprise and within 2-3 days provide services provided for by the terms of contracts.

Umfs in the city of Moscow explained its position regarding the recognition of activities regularly in the specified situation in a letter dated June 18, 2003 No. 26-12 / 32420.

In this case, it is necessary to be guided by the definitions of the term "permanent representation", which are given in Article 5 of the Convention between the Government of the Russian Federation and the Government of the Austrian Republic on the avoidance of double taxes on 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 on taxes on income and property of May 29, 1996.

In these articles of agreements, it was determined that the expression "permanent representation" means a permanent place of entrepreneurial activity, through which the activities of the enterprise are carried out in whole or in part. At the same time, the agreements do not determine the period of time, after which the activities of a foreign organization on the territory of another state leads to the formation of a permanent representation (the exception is the construction platforms), as well as the period for the start and completion of the permanent representation. Therefore, in determining the deadlines for the start and completion of the activities of the Permanent Representation, paragraph 3 of Article 306 of the Tax Code should be guided by paragraph 3, that is, the criterion of regularity should be guided.

Recognition of regular activities is carried out on the basis of clause 2.1 of the provisions on the specifics 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 separation during a period exceeding 30 calendar days a year (continuously or for aggregate).

Considering the following, the activities of residents of Austria and Germany on the territory of the Russian Federation for service maintenance services, if such services are provided by employees of foreign firms once a year within 2-3 days, is not regular and does not lead to the formation of permanent missions These firms in the Russian Federation.

Example .

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

Will the personnel lead to the formation of a permanent representation for the German enterprise?

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 on income and property taxes", the provision of services and the extraction of income can be viewed as one-time and not leading to the formation of a permanent representation in the territory of the Russian Federation. For recoverable income, paragraph 2 of Article 309 of the Tax Code of the Russian Federation should be guided. The obligations of the Tax Agent in the case of the 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 has been providing a Russian organization for the repair and maintenance of equipment located in the Russian Federation (specialists of the Finnish company several times (specialists of the Finnish company are in Russia a total of less than 30 days).

In accordance with Article 4 of the Agreements between the Government of the Russian Federation and the Government of the Finnish Republic of May 4, 1996, under the permanent representation of a foreign legal entity, it is understood as a permanent place of regular implementation of activities related to the construction, installation, installation, assembly, commissioning and maintenance of equipment, and Also performing other works.

Finnish company several times a year (a total of a total of a Finnish company located in Russia less than 30 days) russian company Repair services and service equipment located in the territory of the Russian Federation.

According to the author, such a short presence of the Finnish company specialists in Russia cannot be considered a permanent venue for the regular implementation of the Finnish company's activities and, accordingly, it cannot be recognized as a permanent representation of this company in Russia.

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

Example.

The German company of once during the year commands its specialists in the Russian Federation for a period of less than 25 days to provide engineering services of the Russian company (services for training at the service staff of the bottling lines).

In accordance with the provisions of the Agreement between the Russian Federation and the Federal Republic of Germany, "On avoiding double taxation on taxes on income and property" and the head of 25, Tax Code of the Russian Federation, a permanent representation is formed with the regular implementation of entrepreneurial activities by the enterprise. In this case, the provision of services and the extraction of income can be viewed as one-time and not leading to the formation of a permanent representation in the Russian Federation. (Letter from the Ministry of Finance by the Russian Federation of March 26, 2002 No. 04-06-05 / 1/14).

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

The NK RF does not introduce a special definition of entrepreneurial activities. However, paragraph 1 of Article 11 of the Tax Code of the Russian Federation establishes that institutions, concepts, the terms of civil legislation are applied in the meaning in which they are used in these sectors of the legislation, unless otherwise provided by the Tax Code of the Russian Federation. Therefore, to determine the nature of the activity, it is necessary to be guided by the definition of entrepreneurial activities given in the Civil Code of the Russian Federation, as an independent, carried out on its risk of activities aimed at systematic receipt of profits from the use of property, sales of goods, work, or providing services to persons registered in this capacity in established by law (part 3 of paragraph 1 of Article 2 of the Civil Code of the Russian Federation).

At the same time, the key 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 recognition of a permanent representation on the specified basis 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 right of the country of their institution. Consequently, if a foreign legal entity is registered in the country of its institution as, that is, an organization that does not pursue the goals of systematic profit of profit, its activities in the territory of the Russian Federation cannot be recognized by entrepreneurial. In a number of countries, organizations created as non-profit organizations, the purpose of which is not a systematic profit, is prohibited by entrepreneurial activities, while they can conduct activities to implement the goals defined in their creation.

Thus, foreign legal entities created as non-commercial organizations, due to their legal capacity, cannot meet the sign of the implementation of regular business activities, and therefore cannot create a permanent representation in the territory of the Russian Federation for tax purposes.

Since most organizations are created precisely in order to profit, their activities in the Russian Federation is entrepreneurial.

In more detail with questions regarding accounting and tax accounting in foreign organizations in the Russian Federation, you can get acquainted in the book of CJSC "BKR Intercom-Audit" Foreign organizations And their representative offices. "

 

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