PD is aimed at systematically generating profit.

It should be noted that making a profit is the goal entrepreneurial activity, and not its necessary result, i.e. if as a result of entrepreneurial activity no profit is received and the entrepreneur is at a loss, then such economically ineffective activity does not cease to be entrepreneurial.

The concept of “profit” combines economic and legal aspects.

IN economic theory profit was also considered as a product of production, since when the created product is exchanged for money, in addition to paying all expenses, “something” also arises, which is compensation to the entrepreneur for the risk; both as an entrepreneurial salary and as an incremental form of surplus value

The current legislation does not contain a single legal definition of the concept of “profit”. Thus, the Tax Code of the Russian Federation understands profit as the difference between income received and expenses incurred. The definition of profit is contained in Art. 247 of the Tax Code of the Russian Federation, dedicated to the object of taxation and the procedure for calculating taxable profit, according to which the object of taxation for corporate income tax is the profit received by the taxpayer.

Current legislation determines the types of expenses that reduce income received.

In other areas of law, when assessing the results of business activities, the concept of “income” rather than “profit” is often used. Yes, Art. 171 of the Criminal Code of the Russian Federation establishes liability for illegal business activities related to the extraction of income on a large or especially large scale. At the same time, the qualification of the act provided for in this article, in the opinion of the judiciary, should be based on the understanding of income as the difference between the profit received from business activities and the expenses incurred as a result of such activities, and according to many researchers, it is based on the legislator’s understanding of income as the amount of proceeds from the sale of products without taking into account any expenses

Thus, we can state the need for further development of the concept of “profit” in relation to entrepreneurial activity (At the same time, it is often stated in the literature that distinctive feature The entrepreneur is a new type of motivation - the need to achieve (achieve) success. In this case, success is considered much broader than profit

The systematic nature of entrepreneurial activity also applies to qualifying characteristics.

The current legislation does not contain the concept of “systematicity”. The science of business law approaches the definition of systematicity from several positions. Thus, when determining the systematicity of profit generation, it is proposed to apply various criteria. For example, some scientists propose to establish the systematicity of activities based on identifying the share of income from a particular activity in the income structure of a given person); others determine systematicity on the basis of such criteria as the duration and length of time of activity aimed at making a profit; still others believe that a necessary property of entrepreneurial activity is constancy, the duration of operations, suggesting that certain operations are carried out over a long or even specifically indefinite period of time; that entrepreneurial activity consists of a series of repeated actions on an ongoing basis

The sign of systematicity is implemented in combination in two aspects. Firstly, the entrepreneurial activity itself is systematic, in other words, it must be carried out constantly. Secondly, in the systematic way of making a profit.

It should be noted that in business law, quantitative criteria that are applicable when characterizing systematicity in other areas of law do not always apply. Here, the systematic nature of operations should be interpreted as their unity, continuity, and embrace of one goal

The law defines systematic profit-making as the goal of entrepreneurial activity. Therefore, systematic profit-making cannot be considered as a mandatory characteristic of this type of activity. Profit should be understood as the excess of income from the sale of goods and services over the costs of production and sale of these goods. This is one of the most important indicators financial results economic activity enterprises and entrepreneurs. Profit is calculated as the difference between the proceeds from the sale of a product of economic activity and the sum of the costs of production factors for this activity in monetary terms. Usually they calculate the gross (balance sheet, total) profit and the net profit - the one remaining after paying taxes and deductions from the gross profit.

In accordance with Art. 247 of the Tax Code of the Russian Federation the following is recognized as profit:

1) for Russian organizations- income received, reduced by the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation;

2) for foreign organizations operating in Russian Federation through permanent missions - income received through these permanent missions, reduced by the amount of expenses incurred by these permanent missions, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation;

3) for other foreign organizations - income received from sources in the Russian Federation. The income of these taxpayers is determined in accordance with Article 309 of the Tax Code of the Russian Federation.

Wherein we're talking about not about the actual receipt of profit, but about the corresponding focus of activity. Consequently, there may not be any profit as a result of such activity, but it will be recognized as entrepreneurial.

The sign of systematicity indicates that this activity carried out over a certain, in most cases long, period of time and is characterized by the repetition of actions performed, which are carried out purposefully to achieve specific business goals. To define the concept of systematic profit-making, it is quite difficult to use quantitative criteria, so qualitative characteristics such as “unity, continuity, coverage of one goal” are most often used.

Some authors, however, along with making a profit, also consider the purpose of entrepreneurial activity to be the satisfaction of public interests. Thus, K. K. Lebedev defines entrepreneurial activity as one of the types of generally useful activities carried out in the economic sphere by any legally capable persons through the exploitation of property belonging to them or by performing other actions in order to achieve any results associated with a change in the position of this property, and reimbursement of costs incurred in connection with this from the income received.

O. V. Tishanskaya believes that the goal of entrepreneurial activity can be not only profit: in developed countries, state policy is to encourage non-profit entrepreneurship in the fields of ecology, health, culture, social security.

4. Legally established methods of making a profit:

• use of property;
• sale of goods;
• execution of work;
• provision of services.

The list of directions and areas of entrepreneurial activity is formulated in the Civil Code of the Russian Federation as exhaustive, which seems not entirely correct, since in a market economy the directions and areas of entrepreneurial activity are determined, first of all, by the needs of the market. The market demand for one or another type, direction and area of ​​entrepreneurial activity will undoubtedly be realized by the entrepreneur.

In the definition given in Art. 2 of the Civil Code of the Russian Federation does not mention the production of products, but instead talks about the use of property and the sale of goods, however, most often it is production activities that bring the main profit.

In addition, it is noted that this definition“extremely unsuccessful, also because it does not allow us to distinguish between the active economic activity(for example, for the production and sale of goods, works, services) and passive (for example, for the placement Money V credit organizations, transfer of property for rent, etc.).”

Are the requirements of the tax inspectorate to register an individual entrepreneur when renting out a vehicle to legal entities legal?

Rental Vehicle individuals, legal entities. Rights and obligations of the parties to the transaction.

Question: An individual rents out 2 cars without a crew to different legal entities that perform the functions of a tax agent (withhold personal income tax). The tax office demanded that individuals persons to register an individual entrepreneur, is this legal?

Answer: Russian legislation allows any owner to rent out their property (clause 2 of article 209 of the Civil Code of the Russian Federation). According to the Civil Code of the Russian Federation, one of the signs of entrepreneurial activity is its focus on the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services. However, it is not further specified in what cases we can talk about the systematic receipt of profit by a citizen.

- production or acquisition by a citizen of property for the purpose of subsequent profit from its use or sale;
— keeping by a citizen records of business transactions related to his transactions;
— the interconnectedness of all transactions made by a citizen during a certain period of time;
— the presence of stable connections with sellers, buyers or other counterparties.

To resolve the issue of the presence or absence of signs of entrepreneurial activity in a citizen’s actions, tax authorities first of all analyze the purposes for which he acquired this or that property, as well as the systematic nature of his transactions.

Thus, in order to resolve the issue of the presence or absence of signs of entrepreneurial activity, tax authorities first of all analyze the purposes for which a citizen acquired this or that property, as well as the systematic nature of his transactions, both for the acquisition and sale of goods, works or services (See Help sidebar). The Federal Tax Service of Russia additionally draws attention to the following (letter dated January 25, 2011 No. KE-3-3/142@):

“The qualification of income related to entrepreneurial activity depends on a combination of factors that make up the essence of a particular type of entrepreneurial activity:<…>the grounds in connection with which ownership of the property being sold was obtained, the purposes of the ongoing purchase and sale transactions of the said property, as well as the availability of certificates of systematic implementation specified operations."

In addition to the listed signs of entrepreneurial activity, in practice inspectors pay attention to several more important factors.

By systematically conducting a business, tax authorities understand that a citizen completes at least two transactions during the year

According to the Civil Code of the Russian Federation, one of the signs of entrepreneurial activity is its focus on the systematic receipt of profit from the use of property, sale of goods, performance of work or provision of services (paragraph 3, paragraph 1, article 2 of the Civil Code of the Russian Federation). However, it is not further specified in what cases we can talk about the systematic receipt of profit by a citizen. How do inspectors determine in practice whether a particular activity generates systematic income?

They usually proceed from the definition of the term “systematic” given in paragraph 3 of Article 120 of the Tax Code of the Russian Federation. Paragraph 3 of this paragraph states which violations of the rules for accounting for income and expenses and objects of taxation are gross. In this context, the term “systematic” means the commission of a violation two or more times during a calendar year. In a similar way, Moscow tax authorities assess the systematicity of a citizen’s receipt of profit from certain compensated transactions (letters from the Federal Tax Service of Russia for the city of Moscow dated March 14, 2005 No. 09-10/15594 and the Department of the Federal Tax Service of Russia for the city of Moscow dated March 30, 2004 No. 29- 08/21721). In particular, they indicate:

“To apply penalties to an individual in accordance with Part 1 of Article 14.1 of the Code of Administrative Offenses of the Russian Federation for conducting business activities without state registration as individual entrepreneur it is necessary to establish that this person systematically carried out activities aimed at making a profit, that is, at least twice.”

Thus, we can talk about the systematic conduct of entrepreneurial activities by an individual, even if during the calendar year he made only two compensated transactions aimed at making a profit. But, naturally, such a conclusion can be made only if there are other signs indicating that the citizen is carrying out such activities

Does a citizen who rents out property need to become an entrepreneur?

Anyone who owns real estate can safely rent it out. If the tenant is a company or entrepreneur, they, as tax agents, will withhold personal income tax from the citizen’s income and transfer it to the budget. If the property is leased to an individual, at the end of the year the owner of the property must submit a declaration in Form 3-NDFL and pay tax to the budget. But in some cases, tax officials say that by constantly renting out real estate, a citizen is forced to become an entrepreneur. This means that paying personal income tax on income alone is no longer sufficient. Is it so? We asked a practicing lawyer to comment on the situation.

Receive rental income: is this entrepreneurship or not?

—Russian legislation allows any owner to rent out their property (clause 2 of article 209 of the Civil Code of the Russian Federation). The main thing is to understand when the owner’s actions can be recognized as entrepreneurial activity and when not.

If you are an entrepreneur

The article will tell you whether you calculate taxes correctly if you rent out real estate.

—Can I look at the criteria for entrepreneurial activity somewhere?

— There is no clear list. The Civil Code of the Russian Federation only says that entrepreneurial activity is an independent activity that is carried out at one’s own risk and is aimed at systematically generating profit. And the tax authorities indicated under what circumstances a citizen must become an entrepreneur. For example, if individual specifically bought the property in order to make a profit, or he has several properties that he rents out. There are other signs of entrepreneurship. Their list is presented in the table below.

—These signs are quite general. After all, it is difficult to prove for what purpose a person bought an apartment: to rent it out for income, or is it an investment in the future of his child - so that he has a place to live... How then do you find out in what case, when renting out property, you need to become an entrepreneur?

—There is no definite answer to this question. Everything is individual. Therefore, it is advisable to focus on judicial practice. So, if a citizen purchased residential premises for personal needs or received it by inheritance, but he does not need to use it, he can rent out such property. And this is not entrepreneurship. That is, in this case, a citizen does not need to register as an entrepreneur (clause 2 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated November 18, 2004 No. 23 and the resolution of the Supreme Court of the Republic of Tatarstan dated April 27, 2015 No. 4a-378m). The daily and hourly rental of such residential premises will not be considered commercial activity. This is stated in the resolution of the Supreme Court of the Russian Federation dated January 10, 2012 No. 51-AD11-7.

Signs of entrepreneurial activity are listed in the letter of the Federal Tax Service of Russia dated February 25, 2013 No. ED-2-3/125@.

Mandatory registration

In addition, in accordance with sub. 7 clause 1 art. 31 of the Tax Code of the Russian Federation, tax authorities have the right to accrue additional amounts of taxes payable by calculation based on the information they have about the taxpayer, as well as data about other similar taxpayers. This occurs if the taxpayer refuses to allow officials of the tax authority to inspect production, warehouse, trading and other premises and territories used by him to generate income or related to the maintenance of taxable objects, does not submit documents for tax calculation to the tax authority for more than 2 months, does not keep records of income and expenses, as well as taxable items, or maintains records with violations that make it impossible to calculate taxes.

Administrative responsibility. If a subject conducts business activities without state registration as an individual entrepreneur, this constitutes an administrative offense under Part 1 of Art. 14.1 Code of Administrative Offenses of the Russian Federation.

Criminal liability. Criminal legal consequences occur in the case of carrying out business activities without state registration or without a license (if one is required), if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale (Part 1 of Article 171 of the Criminal Code of the Russian Federation ) — 2.25 million rubles.

So, carrying out activities that meet the criteria provided for in paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, an individual must register as an individual entrepreneur. At the same time, as the Constitutional Court of the Russian Federation indicated in Resolution No. 34-P 2 dated December 27, 2012, the absence of state registration in itself does not mean that a citizen’s activity cannot be qualified as entrepreneurial, if in essence it is actually such.

Is renting out premises considered a business?

Alexander Sorokin answers,

Deputy Head of the Operational Control Department of the Federal Tax Service of Russia

“Cash payment systems should be used only in cases where the seller provides the buyer, including its employees, with a deferment or installment plan for payment for its goods, work, and services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a repayment of such a loan, or itself receives and repays a loan, do not use the cash register. When exactly you need to punch a check, see the recommendations."

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Tax and other regulatory authorities quite often hold certain individuals accountable for illegal business. There are still many convictions for this crime. However, even the courts often have questions related to its legal qualifications. Let's try to understand the most important of them.

First of all, let us turn to the definition of entrepreneurial activity. According to civil law, this is “independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law” (Clause 1, Article 2 of the Civil Code RF).

Based general rule“Participants in relations regulated by civil legislation (including business ones - Author) are citizens and legal entities” (Clause 1, Article 2 of the Civil Code of the Russian Federation), they are the subjects of the crime provided for in Art. 171 of the Criminal Code of the Russian Federation. Possible participation of public legal entities (for example, the Russian Federation, constituent entities of the Russian Federation and municipalities) we will not consider in this material.

Citizens and legal entities. Legal capacity

Unlike legal entities, the set of citizens is heterogeneous. It consists of citizens who have:

• only general legal personality;
• both general and special legal personality (that is, entrepreneurs).

According to the Civil Code of the Russian Federation, “a citizen has the right to engage in entrepreneurial activity without education legal entity:" (Clause 1 of Article 23 of the Civil Code of the Russian Federation). The rules "that regulate the activities of legal entities that are commercial organizations unless otherwise follows from the law, other legal acts or the essence of the legal relationship" are applied to it (Clause 3 of Article 23 Civil Code of the Russian Federation).

The Code identifies several categories of such citizens and on this basis connects the moment of their acquisition of special legal personality with the occurrence of various events:

• general category (entrepreneurs without forming a legal entity) - “from the moment of state registration as an individual entrepreneur” (clause 1 of article 23 of the Civil Code of the Russian Federation);
• special category "head of a peasant or farm carrying out activities without forming a legal entity" - "from the moment of state registration of a peasant (farm) enterprise" (Clause 2 of Article 23 of the Civil Code of the Russian Federation).

The legal capacity and legal capacity of a legal entity arise and cease simultaneously at the time of its creation and at the time of making an entry about its exclusion from the Unified State Register of Legal Entities (clause 3 of Article 49 of the Civil Code of the Russian Federation).

The legislator associates the emergence of special legal personality among citizens and legal entities with the receipt of a special permit (license). According to civil law, “the right: to carry out activities for which it is necessary to obtain a license arises from the moment of receipt of such a license or within the period specified therein and terminates upon expiration of its validity period, unless otherwise established by law or other legal acts"(Clause 3, Article 49 of the Civil Code of the Russian Federation).

Note that legal entities are also heterogeneous, and according to Art. 50 of the Civil Code of the Russian Federation they are divided into two large groups: commercial and non-profit organizations. The criterion for such classification is the purpose of the activity. Commercial organizations are subjects of entrepreneurial activity. The main goal of their work is to make a profit. At the same time, non-profit organizations are not subjects of entrepreneurial activity, since making a profit is not their main goal (Clause 1, Article 50 of the Civil Code of the Russian Federation). Next, we will talk about how this circumstance manifests its positive and negative significance for the criminal legal classification of illegal entrepreneurship.

Objective and subjective aspects of the crime

Let us turn to the definition of illegal entrepreneurship, which is given in Art. 171 of the Criminal Code of the Russian Federation. It is understood as “carrying out business activities without registration or in violation of registration rules, as well as submitting documents containing knowingly false information to the body that carries out state registration of legal entities and individual entrepreneurs, or carrying out business activities without a special permit (license) in cases where such a permit (license) is mandatory, or in violation of licensing requirements and conditions, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale" (Part 1 of Article 171 of the Criminal Code of the Russian Federation) .

It is preferable to begin characterizing this composition from the objective side. First of all, illegal entrepreneurship is always an action. It can be of two types:

• with a defect in the registration of its subject;
• with a defect in the special legal personality of its subject.

Thus, this crime acquires a social danger not due to the criminal nature of the subject, that is, the action itself (entrepreneurial activity). The danger arises as a result of the criminally directed intent of the subject to commit actions that are outwardly absolutely legal, but entail illegal receipt of income.

Therefore, the Plenum of the Armed Forces of the Russian Federation indicated that “in cases where a person, with the goal of generating income, is engaged in illegal activities, liability for which is provided for in other articles of the Criminal Code of the Russian Federation (for example, the illegal manufacture of firearms, ammunition, the sale of narcotic drugs, psychotropic substances and their analogs), what he did additional qualifications does not require it under Article 171 of the Criminal Code of the Russian Federation" (clause 18 of Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 18, 2004 No. 23, hereinafter referred to as Resolution No. 23).

From the subjective side, this crime is characterized by direct intent and selfish purpose.

Subjects of the crime

Having described illegal entrepreneurship from the objective and subjective sides, let us return to the subjects of this crime, or more precisely, to the problem of establishing their circle. As noted above, the legislator, in order to qualify an act as illegal business, established two types of vice of the subject:

• in registration, that is, in existence itself;
• in the emergence of special legal personality.

A defect in registration may be expressed in various forms. This could be either a lack of registration or a violation of its rules.

At the same time, “carrying out business activities without registration will take place only in cases where the Unified state register for legal entities and the Unified State Register for individual entrepreneurs, there is no record of the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or there is a record of the liquidation of a legal entity or the termination of the activities of an individual as an individual entrepreneur" (clause 3 of Resolution No. 23). Carrying out business activities in violation of registration rules should be understood as “conducting such activities by a business entity that knew that during registration there were violations that give grounds for declaring the registration invalid (for example, documents and data were not submitted in full or other information necessary for registration, or it was carried out contrary to existing prohibitions" (clause 3 of Resolution No. 23).

The Civil Code of the Russian Federation twice allows for the possibility of legally conducting business without registration, both for citizens and for legal entities. So, in the cases provided for in paragraph 4 of Art. 23 of the Code, “a citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements: (registration - author) does not have the right to refer in relation to transactions concluded by him to the fact that he was not an entrepreneur. The court may apply to such transactions rules: (Civil Code of the Russian Federation - Author) on obligations related to the implementation of entrepreneurial activities."

It should be noted that the norm of Art. 198 of the Criminal Code of the Russian Federation (it deals with tax evasion from individuals) is formulated on the basis of the same principle, that is, the subsequent legitimation of unlawful actions and the application of a special regime to the resulting legal relations legal regulation.

By fixing it in para. 1 clause 3 art. 49 of the Civil Code of the Russian Federation, the provision on the acquisition by a legal entity of general legal personality in full from the moment of its creation, the legislator allowed the possibility of the existence of a “backlash”. From the moment of creation of the company to the moment of its state registration and making an entry in the Unified State Register of Legal Entities, at least five days must pass. This is the deadline for registering legal entities. This exception cannot be ignored. Illegal business must be truly illegal. In addition, exceptions are special norms - both in relation to the norms on state registration of legal entities and IPBOLE, and in relation to the norms of criminal law (for example, in relation to the norm contained in Article 171 of the Criminal Code of the Russian Federation).

There is one more nuance: commercial activity companies owning property under the right of economic management and operational management, and non-profit organizations, which do not distribute profits between participants, but in the course of their activities extract them with enviable consistency. Both the Criminal Code of the Russian Federation and the Plenum of the Armed Forces of the Russian Federation are silent on this issue. Emphasis with reference to paragraph 1 of Art. 2 of the Civil Code of the Russian Federation on the systematic receipt of profit from activities (clause 1 of Resolution No. 23) does not solve this problem. It remains unclear at what point “systematicity” begins, given that entrepreneurial activity is of an ongoing nature.

The defect in the emergence of special legal personality does not raise any special questions. The procedure for issuing a license is quite formalized. Only in a situation where its validity period has expired, and the person continues to carry out a licensed type of activity and after some time receives a new license or extends the validity of the previous one, may there be a need for additional qualification of such an act under Art. 159 of the Criminal Code of the Russian Federation "Fraud".

The interpretation by the Plenum of the Armed Forces of the Russian Federation of the legal qualification of the activities of a legal entity that has special legal capacity and is therefore unable to conduct other activities other than the one for which it was created, as activities without registration or as activities without a license, looks very original (clause 6 of Resolution No. 23). Here the Plenum contradicts itself: clause 6 of Resolution No. 23 contradicts clause 3 of the same resolution, expanding the content of the concepts of “activity without registration” and “activity without a license”. It seems that in this case the Plenum of the RF Armed Forces should have exercised the right to interpret the rules of law and give a broad interpretation not to these concepts, but to the concept of “illegal entrepreneurship.” The activities of an already established subject of law and entrepreneurial activities outside the limits of exclusive competence cannot in any way be recognized as activities without registration.

Responsibility: criminal, tax, administrative

If a person conducts business activities without registration (Article 171 of the Criminal Code of the Russian Federation), the state does not have the opportunity to reliably establish the amount of his income - the tax base and calculate the amount of taxes or fees. Registration is carried out by the Federal Tax Service of the Russian Federation (Article 2 Federal Law dated 08.08.2001 N 129-FZ). The Tax Code of the Russian Federation provides for administrative liability for violating the deadline for registration with the tax authority (Article 116 of the Tax Code of the Russian Federation) and evading it (Article 117 of the Tax Code of the Russian Federation). Article 14.1 of the Code of Administrative Offenses of the Russian Federation, establishing administrative responsibility for conducting business activities without state registration or special permission (license), duplicates the provisions of the Tax Code of the Russian Federation (in particular, paragraph 1 of Article 117 of the Tax Code of the Russian Federation).

It should be borne in mind that the Code of Administrative Offenses of the Russian Federation deals with administrative responsibility for carrying out business activities without state registration. The Tax Code of the Russian Federation provides for the onset of administrative liability at a later stage, that is, when a person is registered as an organization or individual entrepreneur, but at the same time evades registration with the tax authority as a subject of taxation (taxpayer). This circumstance determines the application of various measures of administrative liability if a person commits one or another of the above offenses.

When limiting the scope of the norms of administrative and criminal law, it is necessary to keep in mind that the criminal law norm (Article 171 of the Criminal Code of the Russian Federation) is of a material nature (the material elements of the offense are crimes). A necessary condition for its application is the infliction of damage of a certain amount or the illegal extraction of income in a certain amount. The administrative legal norm is of a formal nature (formal elements of the offense) and therefore does not require establishing the fact of causing damage. Only a formal violation of a legal requirement is sufficient (clause 13 of the resolution of the Plenum of the RF Armed Forces of October 24, 2006 N 18).

Unfortunately, the Presidium of the RF Armed Forces ignores a very important practical activities both law enforcement and judicial authorities problem: delimiting the scope of administrative, criminal and civil law when implementing mixed legal regulation of the same legal relations. As a result, the question of which branch of law to apply to resolve a particular case is always relevant and insoluble. Therefore, each time it is solved differently. And the tiny amount of damage established as the lowest limit for the application of criminal law, on the one hand, makes it nominal, and on the other hand, gives wide scope for abuse, creating a situation in which one person is brought to administrative charges for the same actions , and the other - to criminal liability. Moreover, for damage caused in the amount of 250,000 rubles and 1 kopeck, this person does not always receive a suspended sentence. By the way, a third party can generally get off with a slight fright if he receives judgment about collecting some amount from him.

There remains one more issue on the topic of “illegal entrepreneurship” that needs to be addressed. Namely - about qualifications under Art. 171 and 199 (198) of the Criminal Code of the Russian Federation. On the one hand, illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation) is general norm in relation to tax evasion from an organization (Article 199 of the Criminal Code of the Russian Federation) or from an individual (Article 198 of the Criminal Code of the Russian Federation). Therefore, when establishing the fact of evasion of taxes and (or) fees, the actions of a person must be qualified under Art. 198 or art. 199 of the Code in order to avoid double punishment for the same action.

On the other hand, the content of the norm formulated in Art. 171 of the Criminal Code of the Russian Federation, significantly narrows the scope of the concept of “illegal entrepreneurship”. This does not allow these compositions to be defined as general and special in relation to each other, that is, the volume of one composition does not overlap with the volume of the other. In addition, the subject composition of legal relations in these cases differs significantly: in cases of evasion of taxes and (or) fees, one of the parties to legal relations is the fiscal authorities, and in the case of illegal entrepreneurship - management bodies of special competence that are not related to the fiscal, as well as fiscal authority when carrying out state registration and maintaining a unified state register. Consequently, if there are signs of a crime under Art. in a person’s actions. 171 and 198 (199) of the Criminal Code of the Russian Federation, they should be qualified in their entirety. This is confirmed by paragraph 2 of Resolution No. 23, in which the Plenum of the RF Armed Forces indicates how to qualify the actions of an individual who has acquired property and leases it out without paying taxes.

E.V. Semyanov,
MGKA, candidate of law. sciences

The problem of the legal status of citizens engaged in entrepreneurial activities is one of important issues legal science, and therefore the significance of any research in this area can rightly be expressed by an aphorism: there is nothing more practical than a good theory.

At the dawn of the romantic revival of private property and private entrepreneurship in Russia, a liberal idea of ​​entrepreneurship dominated. This is any activity aimed at making a profit. This doctrine was set out in the law, according to which entrepreneurial activity is an initiative independent activity of citizens and their associations aimed at making a profit (the RSFSR Law of December 25, 1990 “On Enterprises and Entrepreneurial Activities”).

The drafters of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) abandoned this legal structure. As noted in the legal literature, there is no legal definition of the concept of entrepreneur. Therefore, an entrepreneur is by no means a legal category, but economic concept, since there is no definition in law of what an entrepreneur is. Indeed, unfortunately, it must be stated that in the current pseudo-market economy of Russia there is no legal formula for an entrepreneur. Thus, the legitimate grounds for citizens to engage in entrepreneurial activity in this regard are very questionable, and this, among other things, does not contribute to attracting capital from law-abiding foreign businessmen.

An individual (physical person) in modern Russian law is called differently: citizen, citizen-consumer, citizen-entrepreneur. The latter is sometimes called an individual entrepreneur. And if a citizen (individual) acts as a subject of private law, then an individual entrepreneur is a subject of business law.

Who is an entrepreneur? The question is not at all as obvious as it might seem at first glance. The answer that comes immediately - a person engaged in business - does not say anything. After all, the concept of entrepreneurial activity has different economic and legal meanings. IN real life everything is much more complicated, and in the Russian, domestic legal consciousness, an entrepreneur is a pig in a poke, although entrepreneurial activity exists.

Currently, a citizen has the right to engage in entrepreneurial activity and act as common sense dictates and is not prohibited by law. It is about the law that, recently, rumors have arisen due to the ambiguity generated by the legal chaos. First of all, the question of what type of activity of citizens is recognized as entrepreneurial activity is not without interest? Answering this question, it must be said that the criteria for entrepreneurial activity are given in the law. This is an independent activity, carried out at your own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law (Article 2 of the Civil Code of the Russian Federation).

A grammatical (literal) interpretation of the text of the stated legal norm can probably lead to the conclusion that, according to civil law, the manufacture of products (goods) is not included in the concept of entrepreneurial activity. Indeed, in the above legal provision, entrepreneurial activity includes the independent activity of citizens in performing work, providing services, and using property. That's all. Accordingly, according to official recognition, today the sphere of entrepreneurial activity includes speculation, usury, trade intermediation, financial games on the stock exchange, provision of services, etc. Some part of the business, of course, is acceptable, but prevails, if I may say so , the image of an entrepreneur (businessman), whom the law allows to make capital, as it is fashionable to say, in the virtual, and not in the real, sector of the economy. A sort of imposing rentier who, as they say, neither plows nor sows, but has considerable capital.

Apologists of the liberal market economy and private law consider it important to note that every owner of property has the right to freely dispose of it according to his own desires, for his own benefit. Thus, a citizen has the right to receive income from the use of his property. That is why the Civil Code of the Russian Federation defines entrepreneurial activity as an economic activity that, under all other circumstances characterizing it, is aimed at generating profit from the use of property. In many cases, the secret of such entrepreneurship is simple: warehouses, premises, and buildings were inherited by certain privatizers from the Soviet Union that had sunk into oblivion. Now there is only one concern: how to more profitably rent out huge areas, for example, empty factories, turning them into a bazaar.

At the same time, according to Russian civil law, information, as well as money, are not considered property. This is a special object of civil law. This means that persons who use these things, for example, those who sell information or money for profit, cannot be classified as entrepreneurs. Is this fair and correct? Probably not.

Meanwhile, priority should be given to economic and entrepreneurial activities for the production of material goods. This is truly the hope of our economy - entrepreneurs-producers of material assets of goods.

Among the signs of entrepreneurial activity under the Civil Code of the Russian Federation is the indication that this activity is carried out for the purpose of making a profit. But you don’t have to be familiar with political economy, with the economic teachings of Adam Smith, to understand that an entrepreneur, a commercial, as well as a non-profit structure cannot operate in a market economy at a loss. (True, in Russia, contrary to all scientific arguments, they work, judging by the income declaration and reports to the tax office. This story is mysterious to the point of absurdity). In a word, it is clearer than clear - making a profit is the goal of entrepreneurial activity. Perhaps at the time when the ancient Greeks, loitering under the shade of olive trees, coined the word “economics,” this idea still had some novelty, but not in the 21st century. Sometimes it turns out that the Civil Code of the Russian Federation, in contrast to the previously existing law on enterprises and entrepreneurial activities, introduced a sign of systematic profit-making. It is noteworthy that the keyword “systematism” has recently appeared in the definition of entrepreneurship. Of course, the choice of one word or another is a matter of the author’s personal linguistic taste. However, it can also be noted that this does not change the essence of the matter if we are talking about literary opuses, but not about legal terms and legal categories, which, as one should assume, are the subject of scientific legal research. So, to express the essence or nature of the socio-economic category, which is entrepreneurial activity, the law uses the phraseological expression - “systematic receipt of profit”.

But then there is a dead end. In the science of civil, criminal, tax, labor, administrative law For example, the concept of “systematic” nature of acts is interpreted differently. In another understanding, this concept includes the action at least “twice”, in another - “as more than two times”, in the third - “as more than three times”. In our opinion, it would seem clear that from a philological and philosophical point of view, this is once, twice is repetition, and three times is a system of actions. This means that systematic profit-making should be understood as repeated, i.e., more than two times a person commits acts for the purpose of generating income in the form of a business.

However, it is unclear over what period of time these acts must be committed - within a month, a year or another period of time, in order to establish the occurrence of entrepreneurial activity. Let's say, in Soviet labor law under systematic violation labor discipline, was understood to be the repeated commission of disciplinary offenses during the calendar year.

The real question is: a citizen occasionally derives income from the provision of services, performance of work, manufacturing of products, is he obliged to register his activity as a business and obtain a license for it? Legal scholars believe that entrepreneurial activity includes only activities aimed at systematically generating profit. Consequently, if the performance of work or provision of services is episodic in nature, such activity cannot be classified as entrepreneurial. This is the meaning of Art. 2 Civil Code of the Russian Federation. Therefore, based on the principles of civil law, no one doubts that isolated facts of engaging in entrepreneurial activity for profit cannot be qualified as entrepreneurship. In this case, the amount of profit (income) received does not matter. Consequently, a person, for example, who provided services in the financial market once a year and did not receive a fabulous income, many times greater than the budget of some municipalities, does not become an entrepreneur. This point of view is expressed in tax practice. Entrepreneurship theorists argue: the logic of entrepreneurship is such that it presupposes on the side of the subject of entrepreneurial activity the desire to extract profit (property benefits) in the form of a business, i.e. in order to generate permanent income. In this regard, it should be noted that there are no generally accepted opinions among lawyers, and there are no ungenerally recognized ones either; it’s just that this topic has not been widely discussed by legal scholars. It seems in vain. And that's why. For example, from the use of a plot of land that belongs to him as private property, a gardener systematically receives a harvest and income (profit). Within the meaning of Art. 2 of the Civil Code of the Russian Federation, he should be classified as an individual entrepreneur. Isn't this absurd? Or another case. A citizen systematically receives profit (income) from property when making a compensated transaction aimed at transferring this property for temporary use to someone else. For example, a citizen rents out a garage to another citizen or enterprise. Does he need to register as an individual entrepreneur? As you can understand, from the point of view of the Civil Code of the Russian Federation, leasing of property must be recognized as a business activity, since this is undoubtedly an independent activity aimed at systematically obtaining profit from the use of property. According to the formula of Art. 2 of the Civil Code of the Russian Federation it turns out that renting out an apartment is a business activity. But housing and life are words of the same root, and therefore it is probably immoral to consider the use of property such as an apartment for the survival of some pensioner to be an entrepreneurial activity.

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