A separate division of a legal entity - how to open it correctly, conduct business and close it

What is a separate division

The definition and current concept of a separate unit is enshrined in Article 55 of the Civil Code of the Russian Federation. This is a structural branch or representative office of a legal entity that is located outside the main location of the company. The separate branch is empowered to represent and protect the interests of the parent institution.

The allocated structural unit does not become a new legal entity. It does not have the corresponding rights and powers and is not endowed with property. The head of the branch is appointed by the directorate of the parent institution. The OP operates on the basis of the charter and regulations approved on behalf of the legal entity.

Article 11 of the Tax Code of the Russian Federation establishes that any structural division of a company in which stationary jobs are created (for a period of more than 1 month) is recognized as separate.

The creation is regulated by Federal Law No. 14-FZ dated 02/08/1998. Creation requires a decision from the owners of the company. The decision is made by voting. It is necessary to gather at least 2/3 of the total number of participants in order to consider the decision made. A similar procedure is provided for closing a separate division in 2020 by voting.

Message about the closure of the OP to the Federal Tax Service

Within 3 working days from the date of termination of activity, a message about the closure of a separate division is submitted to the Federal Tax Service (C-09-3-2). You must contact the tax authority at the location of the company's head office.

The first sheet of form S-09-3-2 indicates:

• main codes of the legal entity (head office) - TIN, KPP and OGRN;
• Federal Tax Service code at the location of the company;
• number of message pages. For each closed division – 2 pages.

On the second sheet of the message form you need to write:

• code of the reason for registration of a separate division that is being liquidated;
• name of the branch/representative office, if any;
• the address of this separate unit;
• date from the decision to terminate its activities.

What needs to be done to close

The instructions directly depend on the status of the separate unit. If it is recognized as a branch or representative office, and information about it is included in the constituent documents, then the closure procedure becomes more complicated. If the OP of an organization is closed without a dedicated balance sheet and current account, the procedure is simpler.

Liquidation of a division and liquidation of an organization are completely different procedures. For example, when liquidating an activity, a liquidator is appointed, a notice is published in the media, work with creditors to pay off debts, lay off employees, and approve the liquidation balance sheet. And only after fulfilling all the mandatory conditions, they contact the Federal Tax Service with a request to deregister.

Basic actions, or what is needed to close a separate division in 2020:

1. Make the appropriate decision by a majority vote of the participants.
2. Issue an order to liquidate the OP.
3. Notify employees about the termination of the OP's activities.
4. Pay the state fee if information about the branch or representative office was reflected in the constituent documents.
5. Exclude information about the branch or representative office from the constituent documentation.
6. Submit a notice of closure to the Federal Tax Service.

But there are nuances at every step.

Algorithm of actions upon termination of the activities of a branch or representative office

1. Prepare a decision to close a separate division - a sample of this document should be drawn up by corporate legal counsel.

2. Issue an order.

Order to close a separate division, sample 2020

3. Prepare a notification in form No. C-09-3-2. The first page contains information about the company and owner.

The second page contains information about the branch.

4. Notify employees about the termination of the activities of the representative office no later than two months before the termination of the employment contract (Part 2 of Article 180 of the Labor Code of the Russian Federation). Employees must be notified in writing against signature.

5. Prepare an application in form No. P13001 for registration of changes to the information included in the constituent documents. To close a branch or representative office, you need to fill out the title page of the form, as well as the attachment on sheets “K”. The title page contains the organization's identification information.

Sheet “K” consists of two pages. To close, you must complete the first page. The type of OP, the reason for making changes, and its name are indicated here.

6. Prepare two copies of the charter with the amendments made to it.

7. Pay the state fee and provide a receipt for this.

Stage No. 1 – personnel issues

Due to the discrepancy in timing, it is still recommended to begin the procedure for closing a separate unit by resolving the personnel issue. After all, it is very important to comply with all the requirements of the current labor legislation, especially since the department must have at least one stationary workplace, therefore, at least one employee.

Depending on where the structural unit is located, the procedure will differ. If the office or warehouse is located in another region, then the employees will have to be fired through a layoff procedure, or they will have to be offered a job at the location of the head office. In this case, employees must be notified of the upcoming dismissal 2 months in advance and paid severance pay in the amount of one month's salary. In the future, for three months, if the employee does not get a new job and registers with the employment center, then the enterprise will pay him the average salary for the entire period.

If the closure of a separate division occurs in the same region where the main office is located, socially vulnerable segments of the population cannot simply be fired. These are pregnant women, parents with many children, if the family has children under 3 years old, single mothers or fathers.

Sample order for liquidation

When drawing up an order to terminate the activities of an entity, it is necessary to refer to the document on the basis of which the liquidation takes place. In case of forced termination of activity, this is a court decision, and in case of voluntary termination:

• minutes of the founders' meeting;
• Act.

The order must indicate the following information:

• full name of the head office;
• name of the unit;
• date of the order and its number;
• title (what the document is about);
• essence (liquidation);
• the main reason for which the education is closed and dismissal occurs upon liquidation of the unit of the entire staff;
• deadlines for completing liquidation;
• members of the commission who will monitor the process;
• their positions;
• signatures.

Workers' rights

Dismissal during the liquidation of a division of an enterprise of the entire staff is inevitable. Therefore, it is very important to carry out the reduction in accordance with all the requirements of the Labor Code of the Russian Federation.

So, first you need to distribute notices of dismissal to all employees with a personal signature. This must be done 2 months before the termination of educational activities. If an employee refuses to sign the notice, then it is necessary to draw up a special act indicating the refusal. An employee of the HR department must sign such a document.

In addition, the management of the unit is obliged to notify all downsizing staff about existing vacancies in other entities or at the head office. It is worth noting that if there are free rates, preference is given to laid-off employees. If an employee accepts a job offer, then the management of the unit is obliged to ensure that the citizen moves and finds employment in another city or region (if the branch is located in a remote area).

Dismissal of maternity leavers and other benefit employees

As you know, some employees who belong to the preferential category cannot simply be fired. However, this rule does not apply if a division of the enterprise is liquidated. Dismissal of women who are on maternity leave can also be carried out if the education ceases its activities.

In addition, exempt employees include:

• women who are on maternity leave;
• employees who are on official leave during this period;
• women who have not yet gone on maternity leave, but are already in an interesting situation;
• employees who are on sick leave at the time of liquidation;
• women who are raising small children under 3 years of age.

It is worth noting that all of the listed citizens can also be dismissed unilaterally. However, department management is required to notify them, as is all other staff. Moreover, they can all count on compensation payments and offers about available vacancies.

Inventory

When a division of an enterprise is closed, the commission appointed by order must conduct a complete inventory of all existing property of the branch or representative office, including that stored in the warehouse. In order to conduct an inventory check, an order is issued.

When liquidating a structural unit of an enterprise, the document must be created on the head office letterhead and include:

• Composition of the appointed commission.
• A complete list of what will be included in the check. This could be money, movable property, etc.
• Inventory deadlines.
• Reason (liquidation).
• The timing of receipt of funds to the accounting department for evaluation.

It is important to remember that absolutely all property that is listed on the balance sheet of the enterprise is subject to accounting.

How to disband the staff of a simple separate division

If a separate division ceases operations, it will be necessary to eliminate stationary jobs. During the liquidation, it will be necessary to disband the staff.

There are two options to solve the problem:

1. In accordance with Art. 72.1 of the Labor Code, formalize the transfer or relocation of personnel to another position or job;
2. Based on Art. 81 of the Labor Code of the Russian Federation to dismiss personnel.

To implement the first option and transfer personnel, measures should be taken in compliance with the requirements of paragraph 2, paragraph 2 of Art. 57 and part 1 of Art. 72.1 of the Labor Code. All activities must be carried out in accordance with existing legislation. Implementation requires the following conditions:

1. The employee must agree to the transfer. Consent is confirmed in writing;
2. There is a change in the employee’s labor relations and (or) the liquidated unit is located in another place that is different from the location of the organization. For example, the unit being liquidated is located in Tver, and the organization itself was registered in Tula. To continue, you will need to change your job. The employee has the right to continue working in the organization, but in order to comply with current legislation, he must complete the transfer.

When completing a transfer, it is necessary to make changes to the current employment contract.

If an employee is being moved, then the agreement and consent of the employee in writing is not required. But two aspects must be observed:

1. The unit and the organization itself must be located in the same area;
2. Changes to an existing employment contract are not permitted.

Sometimes a situation may arise when a company does not plan to transfer staff to a new place of work. To comply with the legality of further actions, the employment relationship will have to be terminated. A similar situation may also arise if someone is not satisfied with a new job or position and does not agree with the transfer.

Termination may occur on the basis of the following facts:

1. When closing a division (if the organization and the division are located in different localities);
2. When staffing is reduced. But the following nuance is taken into account: The head office and the division being closed are located in the same city.

Regardless of what basis serves as the basis for termination, the organization notifies the territorial employment service of possible dismissal. The message should be sent in writing to the location of the unit. According to the general requirements (clause 2 of article No. 25 of Law No. 1032-1 of April 19, 1991), notice is sent two calendar months before the date of dismissal.

If the closure of a large division is envisaged, the minimum notice period is increased to three months.

Rationale

In accordance with paragraph 2 of Art.
25 of the Employment Law, if a company is going to lay off employees, and the number of people falling under this action turns out to be large, then notification must be received at least three months before the dismissal. The parameters that determine the mass of layoffs are determined in accordance with industry or territorial agreements. Many agreements use clause 1 of the Regulations on the organization of work to promote employment in conditions of mass layoffs as the basis for determining mass employment. This provision is enshrined in Resolution of the Council of Ministers - Government No. 99 of 02/05/1993. According to this document, one of the mass thresholds is the reduction of fifty or more people in one calendar month.

If an organization has decided to liquidate a large division in another city, and the number of people laid off may exceed fifty people, then there is a risk that the majority of employees will lose their jobs in a short period of time. Accordingly, the fact of dismissal of a large number can be regarded as massive. The fact that a dismissal is recognized as a mass dismissal requires the organization to notify the employment service three months before the dismissal.

The notification form can be found on the website of the territorial employment service. If there is no sample notification on the website, then the message is submitted in any arbitrary form. But even with this option, it must contain information about each employee. It must indicate the position, profession and specialty of each person. Information about the salary of each employee must be present.