Branches and representative offices of LLC. Registration or creation. Branch and representative office of a legal entity. Dependent and subsidiary companies

A limited liability company has the right to have branch and/or representation. In order to understand what suits you best, you need to understand the concepts of branch and representative office.

What is a branch of LLC

For example, a Limited Liability Company is registered in Moscow, is registered with the territorial tax inspectorate there and carries out business activities, for example, trading pharmaceutical products. In this case, the branch located in Novosibirsk also has the right to carry out direct trading and receive funds for this in its own separate current account. The representative office, in this case, has the right only to inform customers about the activities of the Company; all other interactions (conclusion of contracts, settlements) take place directly between the LLC and the client, let’s say, the involved representative office.

Creation of a branch and representative office

Branches and representative offices are created only on the basis of a decision of the General Meeting of Participants of the LLC or the sole participant. When making a decision to create a branch or representative office at the General Meeting of Members of the Company, at least two-thirds (2/3) of the total number of votes must vote on this issue. The charter of an LLC may provide for a different ratio of votes for making a decision on the creation of a branch or representative office.

The creation of a branch or representative office requires full compliance with the requirements of the Law on Limited Liability Companies and the Civil Code. It should also be remembered that if a branch or representative office is created on the territory of a foreign state, then they must be created in accordance with the requirements of the legislation of that state. Further current activities are also carried out in compliance with the current legislation of the foreign state in whose territory the branch or representative office is located.

Activities of the branch and representative office of LLC

Since branches and representative offices of a Limited Liability Company are not separate legal entities, they carry out their current activities on the basis of regulations that are approved by the Company.

When established, branches and representative offices are endowed with property transferred to them by the Company. Further, the branch has the right to acquire other property and record it on its balance sheet.

Heads of branches and representative offices are appointed only by decision of the Company. The heads of branches and representative offices carry out current activities on the basis of a power of attorney issued by the Company.

The activities carried out by branches and representative offices occur on behalf of the Company that created them. Also, the Company itself bears full responsibility for their activities.

Registration of a branch or representative office

As stated above, the decision to create a branch or representative office must be made by the General Meeting of Participants of the Company or its sole participants. Such a decision must be reflected in the Minutes of the General Meeting (if there are two or more members of the Company) or the Decision of the sole participant.

It is also necessary to amend the Company's Charter and reflect in it information about the branch or representative office. This information includes:

The name of the branch or representative office, for example Branch of Romashka LLC in Novosibirsk.

Address of the location of the branch or representative office.

It is also necessary to prepare and notarize an Application for Amendments to the constituent documents of a legal entity in form P13001. This form must be filled out title page, sheet K and sheet M.

Application on form P13001
Protocol or decision on establishing a branch/representative office
Charter in the new edition
Receipt for payment of state duty (800 rubles)
Documents confirming the address of the location of the branch or representative office (lease agreement or letter of guarantee from the owner).

For third parties, a branch or representative office is considered created from the moment the registration authority makes an entry in the Unified State Register of Legal Entities about the creation of the branch or representative office.

Keywords: branch, representation, OOO

08.02.2018
Events. The Central Bank adjusted the dictionary. New concepts have appeared in the Bank of Russia program document. Yesterday, the Bank of Russia released a policy document describing plans for the development and application of new technologies in the financial market in the coming years. The main ideas, concepts and projects have already been announced by the regulator in one way or another. At the same time, the Central Bank introduces and discloses new terms, in particular, RegTech, SupTech and “end-to-end identifier”. Experts note that these areas have been successfully developing in Europe for a long time.

08.02.2018
Events. The State Duma issued capital a pass to Russia. It was decided to repeat the one-time business amnesty. The Russian State Duma adopted on Wednesday in the first, and a few hours later - in the second reading, a package of bills initiated by Vladimir Putin on the resumption of the capital amnesty. The new act of “forgiveness” was announced as the second stage of the 2016 campaign, which was then presented as a one-time campaign and was actually ignored by business. Since the attractiveness of the Russian jurisdiction and trust in its law enforcement officers have not increased over the past two years, the bet is now placed on the thesis that capital must be returned to the country because it is worse for them abroad than in Russia.

07.02.2018
Events. Control and supervision are tailored to fit the figure. Business and authorities compared approaches to reform. The results and prospects for the reform of control and supervisory activities were discussed yesterday by representatives of the business community and regulators as part of the “Week Russian business"under the auspices of the Russian Union of Industrialists and Entrepreneurs. Despite a 30% decrease in the number of scheduled inspections, businesses complain about the administrative burden and call on the authorities to respond more quickly to proposals from entrepreneurs. The government, in turn, plans to revise mandatory requirements, reform the Code of Administrative Offences, digitalization and acceptance of reporting in the “one window” mode.

07.02.2018
Events. Transparency will be added to issuers. But investors are waiting for additions to shareholder meetings. The Moscow Exchange is preparing changes to the listing rules for issuers whose shares are on the highest quotation lists. In particular, companies will be required to create special sections on their websites for shareholders and investors, the maintenance of which will be controlled by the exchange. Large issuers already meet these requirements, but investors consider it important to enshrine these obligations in the document. In addition, in their opinion, the exchange should pay attention to the disclosure of information for shareholder meetings, which is the most sensitive issue in the relationship between issuers and investors.

07.02.2018
Events. The Central Bank of Russia will read the advertising carefully. The financial regulator has found a new field for supervision. Not only the Federal Antimonopoly Service, but also the Central Bank will soon begin to evaluate the integrity of financial advertising. Starting this year, as part of behavioral supervision, the Bank of Russia will identify advertisements of financial companies and banks containing signs of violations and report this to the FAS. If banks receive not only fines from the FAS, but also recommendations from the Central Bank, this could change the situation with advertising in the financial market, experts say, but the procedure for applying supervisory measures of the Central Bank in the new area has not yet been described.

06.02.2018
Events. Not by accent, but by passport. Foreign investments under the control of Russians will remain without international protection already in the spring. A government bill depriving investments of foreign companies and persons with dual citizenship controlled by Russians from the protection of the law on foreign investment, in particular, guarantees of freedom to withdraw profits, will be adopted by the Russian State Duma in early March. The document does not recognize investments through trusts and other fiduciary institutions as foreign. Structures controlled by Russians that invest in strategic assets in the Russian Federation, The White house is still ready to consider them foreign investors - but for them, as before, this only means the need to approve transactions with the Foreign Investment Commission.

06.02.2018
Events. Government agencies are not given banks. FAS Russia intends to limit the expansion of the public sector in the financial market. The Federal Antimonopoly Service has developed proposals to limit purchases of banks by government agencies. The FAS plans to amend the law “On Banks and Banking Activities” and is currently working on them with the Central Bank (CB). An exception may be the reorganization of banks, ensuring the availability of banking services in areas that need it, as well as issues of national security. The head of the Central Bank, Elvira Nabiullina, has already supported this initiative.

06.02.2018
Events. Online audit was given a chance. IIDF is ready to support remote inspections. Online auditing, until now a side branch of this business, which was mainly carried out by unscrupulous companies, has received support at the state level. The Internet Initiatives Development Fund invested 2.5 million rubles in the AuditOnline company, thus recognizing the promise of this area. However, market participants are confident that online audits have no legitimate future - remote audits contradict international auditing standards.

05.02.2018
Events. It is recommended to refrain from legal transactions. The Central Bank of Russia considered “hidden trust management” unethical. The Bank of Russia warns professional participants against using some popular, but not entirely ethical practices in relation to clients in the stock market. The schemes described in the regulator’s letter are within the legal framework, so the Central Bank limited itself to recommendations. But in fact, the regulator is testing the use of motivated judgment, the right to use of which has not yet been approved by law.

05.02.2018
Events. The absorption will be less entertaining. The Central Bank of Russia is encouraging banks to reduce lending to M&A transactions. The idea of the Central Bank to encourage banks to lend not to mergers and acquisitions of companies, but to the development of production takes on concrete features. The first step could be to instruct banks to create increased reserves for loans issued for M&A transactions. According to experts, this will reduce such lending, but in order for bank resources to go to the development of production, additional incentive measures will be required.

Any organization that is focused on constant profit growth will move towards expansion and scaling of key activities. And one of the ways to achieve such a goal is to open a branch and representative office of a legal entity. By creating branches, various companies (including banks) increase the number potential clients and promote themselves in new territories.

What the law says

If you study the legislation of the Russian Federation concerning this issue, you will find out that a representative office is separate division legal entity. At the same time, it must be located outside the location of the company’s key office and will act to implement or protect its interests. It is also important to note that neither representative offices nor branches are legal entities.

As for the branch, its role is also performed by a separate division, the purpose of which is to perform the functions of the company partially or fully in the territory of another locality. If necessary, a branch can serve as a representative office, which indicates its broader legal status.

The list of functions that become available after opening a branch is quite attractive:

marketing analysis and advertising activities;
administrative and judicial protection of the interests of a legal entity;
establishing contacts with potential counterparties;
formation as such, etc.

Obviously, this way of expanding the activities of an enterprise has its advantages.

Foreign companies

Attention should also be paid to such an issue as representative offices and branches of foreign legal entities. In fact, the purpose of such divisions is to carry out the activities that the parent company is engaged in, but on the territory of Russia. Liquidation of such elements of a legal entity can be carried out by decision of the foreign founder who initially initiated the opening process.

For its part, the state also exercises control over such activities. Accreditation of branches and representative offices of foreign legal entities acts as a regulatory instrument. The implementation of this process is carried out by the federal executive body. At the same time, business activities are considered legal from the moment of receipt of accreditation.

Accordingly, when its effect is neutralized, it will no longer be possible to carry out any activity. If the potential activity of a branch of a foreign company contradicts the state policy of protecting the interests of the country and ensuring its security, then accreditation will not be possible.

Branch and representative office of a legal entity: creation

In order for such separate divisions to appear, the fact of official initiative of the authorized bodies of the company is necessary. At the same time, the legislation (Article 55 of the Civil Code of the Russian Federation) obliges a legal entity to indicate in the constituent documents all information regarding the opening of such branches. This requirement is especially relevant if changes are made to the organization’s charter due to the formation of representative offices and branches. All necessary information transferred by notification to the state registration authority.

By the way, the above-mentioned changes in the enterprise documentation should always be made when forming a network of divisions. Ignoring this requirement will be regarded as non-compliance with the requirements of the law.

Touching legal basis activities of such structures, it should be noted that they can function if the following documentary base is available:

Regulations on a specific unit. It is approved at the organization level.
Power of attorney. This document is received by the manager who is responsible for a specific branch and representative office of the legal entity.
Constituent documentation.

As for property, it is formed on the basis of those material resources that the company has assigned to it. Another source of finance can be entrepreneurial activity (relevant for branches). The process of disposing of property received from an organization or acquired as a result of production and business operations is regulated by a power of attorney and the Regulations provided by the parent company.

Features of the activity

Initially, the powers that will guide the branches and representative offices must be clearly defined. The essence and boundaries of such powers depend entirely on the parent company, which makes the key decision on this issue.

This fact, in turn, means that the company acting as the founder is fully responsible for the process of the branch’s activities and subsequent results. If you have to deal with a claim against a subdivision, it must be brought at the location of the latter. But legally the claim will be addressed to the organization as such. Accordingly, the possible recovery will affect the parent company.

It is also worth understanding the following fact: creditors can use the property managed by the branch and representative office of a legal entity to pay off the debt of the latter. In this case, it will be absolutely unimportant whether the separate divisions had anything to do with the reasons for non-payment in accordance with the accepted obligations.

How is the leadership issue resolved?

Of course, someone must manage a division that has been opened, and do it on legally. Therefore, the company is obliged to issue a decree according to which a specific person will be appointed to the position of manager individual.

The director of the branch will further act on the basis employment contract concluded with him, as well as using the issued power of attorney. Moreover, the power of attorney itself is issued specifically to the manager, and not to the department as a whole. For this document to be considered valid, it must contain the date of issue.

Since branch management is always obliged to act on behalf of the parent company, they cannot make any transactions on their own. This means that in the event of any adjustments or claims, the party liable under the contract will be the legal entity, and not its division.

Manager's rights

To carry out full-fledged activities, the director of the branch is vested with certain rights. Their list in each specific case may differ, but they look something like this:

concluding transactions, contracts (including labor contracts) and various legal acts that are necessary to perform current tasks;

resolving any issues related to the operational and current activities of the unit, without exceeding authority and violating the algorithms of actions determined by the resolutions of the company’s management bodies;
opening foreign currency and ruble bank accounts, as well as performing other operations within the framework of cash management of the branch.

At the same time, if any entrepreneur decides to enter into a transaction with a separate division, he should make sure that the director has the appropriate authority to do so.

Work of affiliates and subsidiaries

The legislation allows companies to create subsidiaries. In essence, we are talking about the registration by the founder of another legal entity through the transfer to the disposal of the latter of a certain part of his own property. An open society has all the rights to use these material resources in the process of carrying out specific activities.

Dependent and subsidiary companies are defined as such if the main part of them authorized capital- this is the property and finances of the parent company. A specific structure can also be designated as a subsidiary through an agreement, as well as any other official document.

It is important to understand that the subsidiary is not responsible for the debts of the main business company. But as for transactions made in a particular region by a legal entity (branch), the main partnership will be jointly and severally liable for these obligations with the structure that it opened.

When considering dependent and subsidiary companies, it should be noted that the fact of dependence is recognized if the participating or dominant legal entity has 20% of the voting shares of the joint-stock company. This principle also applies when owning a fifth of the authorized capital in the case of an LLC.

Bank branches

Banks as legal entities can also use the scheme for expanding their activities that was described above. Such structures have the opportunity to form a whole network of branches in the same locality where the head office is located.

A bank branch, in turn, is a division that opens in a territory where a specific legal entity does not yet operate. The branch can perform all key banking operations, thereby effectively expanding coverage within the region.

In order for the bank branch to be effective and strictly follow the developed development strategy, a director is appointed as its head.

Results

Expanding the company's activities through the organization of separate divisions is a fairly successful and profitable practice. Therefore, many legal entities actively use such a scheme. The main thing in this matter is competent documentation and equally high-quality work in all regions, which will help increase loyalty to the organization.

The responsibility of a branch of a legal entity is transferred by law to the shoulders of the enterprise that created it. In this article we will determine the difference between this separate division and an independent organization, and also answer the question of who should address the claim if the violation is related to the activities of the branch.

Legal status of the branch

Before moving on to the answer to the question about the responsibility of a branch, let’s figure out what applies to a branch and how it differs from a legal entity and other business units. Art. 55 of the Civil Code of the Russian Federation defines a branch as a division that is separate, that is, separated from a legal entity by territorial location. In this case, the branch carries out the same functions as the enterprise that created it, including representation of the interests of this enterprise.

Let's call character traits, distinguishing these divisions from legal entities. Branches:

do not have legal personality, that is, they cannot be participants in legal relations, enter into transactions, etc.;
cannot independently dispose of the property assigned to the branch (this is the prerogative of the legal entity that created them);
are managed by a manager appointed by the legal entity that created the branch;
are guided in determining the powers, goals and procedure for carrying out activities by regulations that are developed and approved by the same legal entity.

Thus, although the branch performs the same functions as the legal entity that created it, it is not an independent economic entity.

IMPORTANT! Since September 2014, information about branches is not subject to mandatory reflection in the charter of the parent legal entity; it is enough to include them in the Unified State Register of Legal Entities.

A legal entity is responsible for its branch in the following cases established by law:

for tax offenses (Article 107 of the Tax Code of the Russian Federation);
administrative offenses (Article 2.1 of the Administrative Code).

Let's take a closer look at civil liability for obligations created by a branch.

Liability of the branch for civil obligations

The Civil Code of the Russian Federation does not give a direct answer to the question of whether the branch is liable for any obligations of a civil law nature. However, if you analyze Art. 55 and 56 of the Civil Code of the Russian Federation, we can conclude that only a legal entity can be liable for the obligations of a branch. The property of a branch is the property of a legal entity, and it is the legal entity that manages this property and is responsible for it.

Art. 5 of the Law “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ, in contrast to the Civil Code of the Russian Federation, contains a direct indication that the company that created it bears responsibility for the activities of the branch. This norm is imperative.

Art. 36 and 37 of the Code of Civil Procedure of the Russian Federation, subjects with civil procedural legal and legal capacity include:

citizens;
organizations.

Branches are not mentioned in this list, which means they cannot seek protection in court, nor can they act as defendants in court. There is no point in filing claims against the branch. Such a claim will not be accepted for consideration.

We see a similar approach in arbitration procedural legislation. Art. 43 of the Arbitration Procedure Code of the Russian Federation also does not name branches as a possible subject of procedural legal relations. In the resolution of the AS MO dated July 6, 2015 No. F05-8986/2015, the court indicated that the separate unit does not have procedural legal capacity and legal capacity.

Nuances of consideration of cases related to the activities of the branch

IMPORTANT! Despite the fact that the claim can only be addressed to a legal entity, it can be brought at the location of the branch if follows from activity of this separate division (clause 5 of Art. 36 agro-industrial complex RF). In this case, court notices will also be sent by the court at the location of the branch (letter of the Supreme Arbitration Court of the Russian Federation dated May 25, 2004 No. S1-7/UP-600).

Now let’s consider the opposite situation, when a legal entity represented by the head of its branch acts as a plaintiff in court. Thus, when considering a similar case, the court (resolution of the 4th AAC dated 04/11/2014 in case No. A58-6272/2012) indicated: despite the fact that the claim was signed by the head of the branch, he nevertheless acted within the powers delegated to him by the legal entity , and also represented his interests. Thus, the court considered that there were no grounds to believe that the claim was signed by an unauthorized person.

It is necessary to distinguish between the responsibility for the activities of the branch to third parties and/or the state from the responsibility of the branch management to the parent company. If any offense is committed, disciplinary measures provided for by labor legislation may be applied to the head of the branch. In addition, a legal entity may demand compensation for losses in the manner prescribed by Art. 53.1 Civil Code of the Russian Federation.

In conclusion, we note once again that the branch cannot act as a plaintiff or defendant in court. The legal entity that created it will always be responsible for it. At the same time, a claim addressed to a legal entity, but arising from the activities of a branch, may be brought at the location of the branch.

Representation - a separate division of a legal entity located outside its location, which represents the interests of the legal entity and provides its protection.

Branch- a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of representation (Article 55 of the Civil Code).

A representative office is distinguished from a branch by a single functional feature.

The difference between a representative office and a branch:

representative offices are intended only to represent the interests of a legal entity and carry out its protection;
branches can perform all the functions or any part of the functions of a legal entity without exception. They can also perform representative functions.

From here the functions of a branch are broader than the functions of a representative office.

Features of the representative office and branch:

are not legal entities(do not have), they are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it;
heads of representative offices and branches are appointed by the legal entity and act based on his;
must be specified in the constituent documents the legal entity that created them;
these are divisions (components) of a legal entity, and in this sense they are comparable to its other divisions (shops, teams, sections, lines, production, etc.);
located outside the location of the legal entity, which is determined by the place of its state registration;
optionality in the sense that a legal entity may not have representative offices (branches), and if it does, it can close them, which will not in any way affect the very fact of its existence.

Any legal entity may have representative offices and branches:

regardless of its affiliation with commercial or non-profit organizations and from its form;
as within Russian Federation, and beyond, in compliance with the legislation of the relevant state.

More details

If any division of a legal entity is separate, but its existence is not optional, it is not a representative office (branch). Thus, the location of faculties and institutes of state educational institution"Irkutsk State University"does not coincide with the location of this legal entity (the so-called main building), since they are all located in different buildings located in different areas of the city. This does not mean that faculties and institutes act as representative offices (branches): if you mentally “discard" separate faculties or institutes, this, of course, will not affect the existence of the University as a legal entity, but what will remain of it if all faculties and institutes are thus “discarded”? With representative offices (branches), this issue is resolved much more simply.

Representative offices (branches) are endowed with property by the legal entity that created them (paragraph 1, paragraph 3, article 55 of the Civil Code). Due to the geographical isolation of the representative office (branch), this property is economically accounted for on their separate balance sheet, but due to their lack of legal capacity, it does not and cannot have legal separation. For this reason, this property may be subject to recovery for the obligations of a legal entity, regardless of whether we are talking about obligations related to the activities of this (or another) representative office (branch). For obligations related to the activities of the representative office (branch), the legal entity bears responsibility, and its liability is full and is not limited to the amount of property provided to the representative office (branch).

Representative offices (branches) operate on the basis of provisions approved by the legal entity (paragraph 1, paragraph 3, article 55 of the Civil Code). The opening of representative offices (branches) must be associated with the availability of relevant information in the constituent documents of the legal entity, including the need to make additions to them (paragraph 3, paragraph 3, article 55 of the Civil Code).

The management of the activities of the representative office (branch) is carried out by the head (the law does not provide for other bodies), who is appointed by a legal entity and acts on the basis of a power of attorney (paragraph 2, paragraph 3, article 55 of the Civil Code). Therefore, participants in civil transactions enter into legal relations not with a representative office (branch) due to the lack of them, but with the legal entity that created them through an individual - the head of the representative office (branch), who is a representative of the legal entity and acts in its interests by proxy (more about representation and power of attorney, see Chapter 10 of the Civil Code).

Dependent and subsidiary companies

According to Art. 67.3 The Civil Code of the Russian Federation recognizes a business society subsidiaries, if another (main) business company or partnership due to a predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the ability to determine the decisions made by such a society.

Features of the subsidiary:

Only business companies and partnerships can create a subsidiary;
the subsidiary is not liable for the debts of the main business partnership or company;
The main company is jointly and severally liable with the subsidiary company for transactions concluded by the latter in pursuance of instructions or with the consent of the main company (clause 3 of Article 401), except for the following cases:
- voting of the main company on the issue of approval of the transaction on general meeting participants of the subsidiary, as well as
- approval of the transaction by the management body of the main business company, if the need for such approval is provided for by the charter of the subsidiary and (or) main company;
the main company (partnership) bears subsidiary liability for the debts of the subsidiary in the event of its insolvency (bankruptcy) through the fault of the main company (partnership);
Participants (shareholders) of a subsidiary have the right to demand compensation from the main partnership (company) for losses caused by its actions or inaction to the subsidiary (