Systematic profit generation. Signs of entrepreneurial activity. Systematic implementation of activities
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, the literature often states that a distinctive feature of an entrepreneur is a new type of motivation - the need to achieve (achieve) success. In this case, success is viewed much more broadly 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
Entrepreneurial activity has the goal of systematically obtaining profit from the use of property, sale of goods, performance of work, and provision of services. To achieve this goal, the systematic implementation of the activity itself is naturally required. One should agree with the opinion that the systematic implementation of activities should be understood as the presence of a property that unites all the actions performed into a single whole. Consequently, entrepreneurial activity is an activity aimed at systematically making a profit, for which its subject needs to make a number of transactions, the purpose of which is to make a profit. If a single transaction is made, then it cannot be qualified as a business activity, even if income is received from it, because a single transaction is not systematic in nature. It is interesting that the ambiguous interpretation of this sign of entrepreneurial activity in practice leads to numerous confusions, which often end in lawsuits.
Let's look at a typical example. Under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver the result to the customer, and the customer undertakes to accept the result of the work and pay for it. Article 711 of Part Two of the Civil Code of the Russian Federation determined the following procedure for payment for contract work: if the contract does not provide for advance payment for the work performed or its individual stages, the customer is obliged to pay the contractor the agreed price after the final delivery of the work results, provided that the work is completed properly and within the agreed time frame or with the consent of the customer ahead of schedule Entrepreneurial (economic) law: Res. ed.O.M. Oleinik. - M.: Yurist, 2008 p. 187.
The contractor has the right to demand payment of an advance or deposit only in cases and in the amount specified in the law or the contract. Today, for various reasons, many workers are employed in primary production part-time or part-time. working week or, in the context of the global financial crisis, they are forced to do part-time work in their free time from their main place of work. They are periodically contracted to perform construction or other contract work. How many times a month or year must they perform them so that such activity can be regarded as entrepreneurial? Or the question can be formulated differently: how many times in the specified periods of time should they receive payment for the work performed? But a situation directly provided for by Article 711 of the Civil Code of the Russian Federation is also possible: several people, over the course of several months, carry out major repairs in a residential building or build a house in the village, or a bathhouse, a swimming pool, and receive payment only after the complete completion of the work. Zhilinsky S.E. Business Law ( legal basis entrepreneurial activity): textbook. for universities / S.E. Zhilinsky. - 8th ed., revision, and additional. - M.: Norma, 2007 p. 176.
Consequently, there is no systematic profit making, and therefore no entrepreneurship? And if they received payment monthly, then such activity can be regarded as entrepreneurial? The answer seems quite ambiguous.
The legislator did not want to help the law enforcer in such matters. It seems that an individual approach is still necessary in each specific controversial case; there is a line between isolated cases of making a profit from the use of property, selling goods, performing work, providing services and a constant focus on making a profit from such activities, a continuous desire to engage in it professionally.
State registration of legal entities and individual entrepreneurs - acts of the authorized federal body executive power, carried out by entering into state registers information on the creation, reorganization and liquidation of legal entities, acquisition of status by individuals individual entrepreneur, termination by individuals of activities as individual entrepreneurs, other information about legal entities and individual entrepreneurs Legal support Russian economy: textbook / answer. ed.N.G. Markalova. - M.: Publishing house "BEK", 2007.
State registration of business entities is carried out in the manner prescribed by Federal Law dated 08.08.2001 No. 129-FZ "On state registration legal entities and individual entrepreneurs" Entrepreneurial (economic) law: Editor-in-chief O.M. Oleinik. - M.: Yurist, 2008 p. 167.
An independent type of individual entrepreneur is the head farm carrying out activities without education legal entity, who is also recognized as an individual entrepreneur from the moment of state registration of his farm.
Documents required for state registration of an individual entrepreneur:
application for state registration;
document confirming payment of state duty;
copy of the passport;
certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution.
In case of submission of documents for registration individual as an individual entrepreneur by a person acting under a power of attorney on behalf of the future entrepreneur, or sending documents by post, the authenticity of the applicant’s signature on the application and the authenticity of the copy of the passport are certified by a notary.
If documents are provided in person by the applicant, the authenticity of the applicant's signature on the application and the authenticity of the copy of the passport are not certified by a notary.
For state registration, a state fee is paid in the manner determined by Chapter 25.3 “State Duty” of the Tax Code of the Russian Federation Legal regulation of entrepreneurial activity: textbook. allowance / L.N. Kuznetsova. - Rostov n/d: Phoenix, 2009 p. 78.
In accordance with Article 333.33 of the Tax Code of the Russian Federation, payment of the state fee for state registration is provided for:
individual entrepreneur - 800 rubles;
legal entity - 4,000 rubles;
political party - 2,000 rubles;
all-Russian public organizations disabled people - 1,000 rubles.
Thus, only legally capable citizens (on reaching 18 years of age), that is, those who are able to independently perform legal actions, enter into transactions and execute them, acquire property and own, use and dispose of it, can carry out entrepreneurial activities.
Citizens have the right to engage in entrepreneurial activity without forming a legal entity only from the moment of state registration as an individual entrepreneur.
The legal definition of entrepreneurial activity is given in Art. 2 Civil Code of the Russian Federation.
Entrepreneurial activity is an 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 established by law ok.
Analysis this definition allows us to identify the following signs of entrepreneurial activity.
1. Entrepreneurial activity is characterized independence.
Conditionally, we can distinguish the property and organizational independence of the entrepreneur. Property independence is determined by the presence of the entrepreneur's separate own property as the economic basis of activity. The amount of property independence depends on the legal title on the basis of which this property belongs to the subject. The greatest independence of the property owner. Enterprises operating under the right of economic management also have significant property independence, but this is already limited by law and an agreement with the owner. And finally, ownership of property by right operational management provides the least scope for the manifestation of entrepreneurial initiative.
Organizational independence is the ability to make independent decisions in the process of entrepreneurial activity, starting from the decision to engage in such activity, the choice of its type, the organizational and legal form of implementation, the circle of founders, etc. The independence of an entrepreneur also manifests itself at the stage of realizing the results of entrepreneurial activity. Thus, independence, being a strong-willed, subjective sign of an entrepreneur’s activity, manifests itself at all its stages. An entrepreneur acts with his own authority and in his own interest, by his actions realizing the rights granted to him by law. Therefore, the legal relationship that develops when an entrepreneur carries out his activities is qualified in the science of entrepreneurial law as absolute - * (source No. 22).
At the same time, the independence of an entrepreneur is not unlimited. Being a social activity, it must be subject to those social norms who operate in society. Among these norms, legal norms play a leading role, establishing the rules that an entrepreneur must follow in his activities when entering the market.
It is important to say that the sign of independence distinguishes entrepreneurial activity from labor activity. Having concluded employment contract, the employee must obey the internal rules labor regulations, fulfill the duties assigned to him, comply with labor discipline. Taking initiative in implementation labor activity is also possible, but it is obvious that its volume is not comparable with the independence of the entrepreneur.
2. Entrepreneurial activity is associated with risk. The risky nature of entrepreneurship fundamentally distinguishes it from economic activity the period of an administrative-planned economy, which allowed the existence of obviously unprofitable enterprises, which, in case of poor business results, could turn to the state for support. In this regard, it is quite understandable that such a purely market institution as the institution of insolvency (bankruptcy) is revived in our country only with the transition to a market.
Entrepreneurial risk is a powerful incentive to successful work; reduction of losses can be achieved by concluding a business risk insurance contract, i.e. the risk of losses from business activities due to violation of their obligations by counterparties or changes in the conditions of this activity due to circumstances beyond the control of the entrepreneur, including the risk of non-receipt of expected income.
It should be noted that the category of risk has traditionally been the subject of research by economists. Thus, the French economist R. Catillon, who is considered the father of the very term “entrepreneur,” was one of the first to put forward the concept of risk as distinctive feature entrepreneurial activity. A. Smith, in his “Inquiry into the Nature and Causes of the Wealth of Nations,” characterized an entrepreneur as an owner of capital who takes on the risk of business. Entrepreneurial profit, according to Smith, is the owner's compensation for risk. The authors of the famous textbook "Economics" - * (source No. 23) K. McConnell and S. Brew considered entrepreneurship as a special type of activity, which is based on a number of characteristics, including the characteristic of an entrepreneur as a person taking risks. An entrepreneur risks not only time, labor, business reputation, but also with invested funds - their own and their partners or shareholders.
In the legal literature, the category of risk also arouses keen interest; attempts have been made repeatedly to formulate a definition of this concept - * (source No. 24). Without being able to present the entire palette of definitions, we present one of them, proposed by V.S. Belykh, who understands entrepreneurial risk as “the potential possibility (danger) of the occurrence or non-occurrence of an event (set of events) that entails adverse property consequences for the activities of the entrepreneur” - * (source No. 25).
3. Entrepreneurial activity is aimed at systematically generating profit. Making a profit, being the main goal of an entrepreneur, gives his activities a commercial character, which is not lost even if the result is not a profit, but a loss. At the same time, if making a profit is not initially set as a goal, the activity cannot be called entrepreneurial; it is not of a commercial nature.
Researchers paid attention to making a profit as the goal of an entrepreneur’s activity centuries ago. Thus, the French economist J.B. Sey, a contemporary of D. Ricardo, defined an entrepreneur as an economic agent who combines factors of production, moves economic resources from the area of low productivity and low income to the area of high productivity and profitability - *(source No. 26). R. Catillon identified the driving motive for entrepreneurial activity - obtaining higher income as payment for bearing risk. The statement of A.I. is consonant with R. Catillon. Kaminki, who noted that profit is only a stimulus for commercial activity. The purpose of commercial activity is this activity itself, profit-generating activity - *(source No. 27).
From a legal point of view, the concept of “profit” is defined in accounting and tax legislation as the final financial result of the activity of an economic entity. So, in accordance with Art. 247 of the Tax Code of the Russian Federation with profit for Russian organizations income received is recognized, reduced by the amount of expenses incurred, determined in accordance with Art. 247 Tax Code of the Russian Federation. In this case, income is recognized as economic benefit in monetary or in-kind form, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined in accordance with the provisions of the Tax Code of the Russian Federation (Article 41 of the Tax Code of the Russian Federation). Expenses are recognized as justified and documented expenses (and in cases provided for in Article 265 of the Tax Code of the Russian Federation, losses) incurred (incurred) by the taxpayer (Article 252 of the Tax Code of the Russian Federation). Thus, without setting ourselves the task of a detailed consideration of the issue of the procedure for generating profit, we note that the legislation defines this procedure quite precisely. For the reliability of the formation financial result activities of entrepreneurs are subject to state tax control. In addition, entrepreneurs can, and in some cases are required to, resort to the services of auditors to confirm the reliability of their financial (accounting) statements. It is safe to say that interest in the correct formation of entrepreneurial profit is of a private-public nature.
It should be noted that the goal of making a profit is the basis for distinguishing organizations into commercial and non-profit in Art. 50 Civil Code of the Russian Federation.
One cannot help but pay attention to such a qualifying feature of entrepreneurial activity as systematic profit-making.
Unfortunately, the legislation has not yet developed clear quantitative criteria for systematicity. It is proposed to fill the legislative gap by including in the definition of entrepreneurial activity additional qualifying features, such as the share of profit from this activity in the total income of a person, the “materiality” of the profit, receiving it a certain number of times during a specific reporting period, etc.
It seems that in this case arithmetic categories cannot be applied. The important thing is that the entrepreneur sets himself the goal not of making a one-time profit, but of extracting it as a business on an ongoing basis.
Of course, systematically making a profit cannot be considered as the only goal of entrepreneurial activity. At the same time, the design proposed in the literature seems purely theoretical, which allows for the entry of an entrepreneur into the market who does not set himself as a strategic goal making a profit as a result of his activities.
4. In accordance with the legal definition of entrepreneurial activity, profit is derived by entities from the use of property, sale of goods, performance of work or provision of services.
This feature seems to be formulated very poorly. The fact is that entrepreneurial activity is multifaceted and in a market economy its directions cannot be represented by a closed list. Why, for example, is it necessary to talk only about the right of use in relation to property? What if the subject makes a profit in the process of exercising the right to dispose of property? Apparently, it did not make sense in the law to list possible areas of entrepreneurial activity, since they are determined primarily by the market. It is worth noting that in the concept of entrepreneurial activity, which was given in the Law of the RSFSR of December 25, 1990 N 445-I “On Enterprises and Entrepreneurial Activities” - * (source No. 28), this list was absent. This approach seems more correct.
5. Finally, as stated in Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is carried out by persons registered in this capacity in the manner prescribed by law. A literal interpretation of the legislative norm leads to the conclusion that if an activity is carried out by unregistered persons, it is not entrepreneurial. This conclusion seems incorrect. Indeed, how can Art. 171 “Illegal entrepreneurship” of the Criminal Code of the Russian Federation, Art. 14.1 “Carrying out business activities without state registration or without a special permit (license)” of the Code of Administrative Offenses of the Russian Federation, how to recover in court the income received from such activities for the budget? The imperfection of legal technology leads to the need to use other methods of interpreting this norm: systematic, logical. Such a sign of entrepreneurial activity as its implementation by persons registered in the prescribed manner is a formal sign, i.e. a sign that legalizes this activity, giving it legal status. Its absence does not lead to the loss of the entrepreneurial quality of the activity, but makes it illegal. In contrast to the analyzed formal characteristic, the previously considered characteristics of entrepreneurial activity are essential (revealing its essence), and only their combination makes it possible to qualify a person’s activity as entrepreneurial. Some researchers of the concept of entrepreneurial activity propose to interpret the mandatory state registration not only as a sign, but also as a condition for proper entrepreneurship, a requirement for the implementation of legal business activity. It seems that such an interpretation of the need for state legitimation of an entrepreneur is appropriate.
It is important to say that in the scientific and educational literature it is proposed to consider other signs of entrepreneurial activity that are not presented in the legislative definition. Let's pay attention to some of them.
A sign of professionalism in entrepreneurial activity. As a sign of entrepreneurial activity, professionalism suggests highlighting, in particular, O.M. Oleinik. Expanding the concept of professionalism of an entrepreneur, the author writes that this sign “consists in:
- the conduct of this activity by people who have certain qualifications or information necessary for making and implementing decisions... As a confirmation of professionalism, current legislation in some cases recognizes previously acquired education (for example, legal, economic, medical), and in others requires the entrepreneur to pass relevant examinations (for example, for auditors);
- carrying out business activities according to certain rules and methods...;
- compliance of performance results with certain requirements...;
- controllability of activities government agencies...;
- availability of state guarantees for activities..." - * (source No. 29).
Without disputing the desirability of the presence of all the above components of professionalism and professionalism itself in the activities of an entrepreneur, confirming the presence of professionalism as a condition for successful, competitive activity, we note that in practice, entrepreneurial activity is not always carried out professionally. However, this does not deprive the activity of qualifying as entrepreneurial. This attribute appears to be necessary only for some types of activities. For example, as licensing requirements and conditions, the presence of special knowledge, experience, education, which is confirmed necessary documents, is provided for most licensed activities. For many other types of entrepreneurial activity, professionalism is not put forward as a mandatory characteristic. Therefore, it seems more accurate to consider the sign of professionalism of entrepreneurial activity not as a mandatory, but as an optional sign.
Among the optional features of entrepreneurial activity, one should also consider its innovative, innovative nature. The creator of the theory of the entrepreneur-innovator is the economist J. Schumpeter, who considered the entrepreneur as “an agent realizing more and more new combinations of production factors (by updating marketable products, searching for new markets, etc.)” - *(source No. 30) . J. Schumpeter formulated the following functions of entrepreneurial activity:
- production of a new material good, still unfamiliar to the consumer, or an old good, but with a new quality;
- introduction of new production methods not previously used;
- development of new economic markets or widespread and deep use of old ones;
- development of new sources and types of raw materials;
- implementation new organization production and sales. It is impossible not to notice that the signs put forward by J. Schumpeter are currently reflected in the emerging legislation on innovation activity.
Among the signs of entrepreneurial activity, the RSFSR Law of December 25, 1990 N 445-I “On Enterprises and Entrepreneurial Activities” indicated the property liability of the entrepreneur. This feature has not been formalized in the modern legal definition. At the same time, as rightly noted in the literature, this “does not mean the absence of legal responsibility itself” - this feature is inherent in entrepreneurial activity. The basis and procedure for bringing business entities to responsibility are determined current legislation. Moreover, Art. 401 of the Civil Code of the Russian Federation, defining the grounds for liability for violation of obligations, provides for increased liability of the entrepreneur: “Unless otherwise provided by law or contract, a person who has not fulfilled or improperly fulfilled an obligation when carrying out business activities is liable unless he proves that proper fulfillment was "impossible due to force majeure, i.e. extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, violation of obligations on the part of the debtor's counterparties, the absence on the market of goods necessary for fulfillment, or the debtor's lack of necessary funds."
Having considered the signs of entrepreneurial activity, we can classify them. It seems that all the signs of entrepreneurial activity can be classified:
- those specified in the legislative definition of entrepreneurial activity (legal) and additionally proposed in the literature;
- essential, characterizing the essence of entrepreneurial activity, and formal, characterizing its form;
- mandatory, the totality of which is necessary and sufficient to qualify the activity as a legitimate entrepreneurial one, and optional, the presence of which is desirable, but not mandatory.
In addition, in the scientific literature, among the signs of entrepreneurial activity, they distinguish generic ones inherent in any economic activity (independence, risk) and specific ones (systematic profit making). The promotion of generic and specific characteristics leads us to the need to determine the relationship between entrepreneurial activity and such types social activities, as economic, economic, commercial (trading). It seems that the broadest concept is “economic activity”. Economic activity can be defined as reproductive activity, combining such stages as production, distribution, exchange, consumption.
Economic activity, being a type of economic activity, is defined as the procedure for its organization, management and direct implementation.
The concept of entrepreneurial activity was discussed earlier. Let us note that entrepreneurial activity is a type of economic activity, having such a generic characteristic as a focus on making a profit. As indicated by V.K. Mamutov, the concept of economic activity includes entrepreneurship, but is not limited to it - * (source No. 34).
Commercial, or trading, activity is a set of actions to promote goods from manufacturers to consumers. Commercial activity is a type of economic entrepreneurial activity - *(source No. 35).
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, Russian Federation, subjects 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 forming a legal entity:” (Clause 1, Article 23 of the Civil Code of the Russian Federation). It is subject to 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” (Clause 3 of Article 23 of the 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 “the head of a peasant or farm enterprise, carrying out activities without forming a legal entity” - “from the moment of state registration of the 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 legislation, “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 (in it we're talking about on 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 of legal regulation to the resulting legal relations.
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 with the right of economic management and operational management, as well as 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
When does the moment come after which working for yourself without registration becomes dangerous?
In general, strictly speaking, A citizen has the right to engage in business only after state registration. This requirement is established by Russian legislation (Article 23 of the Civil Code of the Russian Federation).
Note. Having your own business is wonderful, but starting your own business without registration is already a time bomb. Even if you really don’t want to pay taxes, you will have to go through the registration procedure: otherwise, even receiving the income itself will be regarded as . And then - troubles in the form of responsibility. Administrative, tax and even criminal.
In relation to the activities of citizens entrepreneurial activity will be considered:
- carried out independently;
- which is carried out at your own risk;
- aimed at generating income;
- as a result of which income is received systematically.
Thus, if you, a citizen, are directly involved in transactions on your own behalf and in your own interests, you yourself bear the risk of losses and, as a result, receive systematic income, then there is a duty.
What does "systematic" mean? There is no such definition in civil law, and the definitions given by other branches of law are varied.
In the Tax Code (Article 120 of the Tax Code of the Russian Federation), systematicity means “two or more within one calendar year.” Antimonopoly legislation (Clause 11, Article 4 of Federal Law No. 135-FZ of July 26, 2006 “On Protection of Competition”) increases this period to three years.
The Russian Ministry of Finance believes that systematicity means at least once a month ( Guidelines By accounting inventories, approved. Order of the Ministry of Finance of Russia dated December 28, 2001 N 119n).
The lack of a unified approach to the definition gives a chance to a citizen who does not want to become a PBOLE, since there is no way to say exactly when a citizen’s receipt of income from the use of property (sale of goods, performance of work or provision of services) falls under the concept of “systematic receipt of income.”
It is safe to say that one-time transactions within the framework of civil law agreements cannot indicate that an individual has received any business income.
However, regular receipt of income under civil contracts is not always a business activity.
For example, Moscow tax authorities, in Letter dated March 30, 2007 N 28-10/28916, in relation to transactions with real estate by individuals, advised their colleagues to take into account the following.
The Tax Code of the Russian Federation does not establish the obligation to register as PBOLE individuals participating in rental relations and (or) transactions for the purchase and sale of property owned by them.
Income received by individuals from leasing (renting) and (or) selling movable or immovable property is specified in Art. 208 of the Tax Code of the Russian Federation as an independent type of income subject to personal income tax.
Note. Within the meaning of civil legislation, movable and immovable property that is the personal property of an individual is a material value that operates in kind for a long time, and the essence of this value does not change depending on the change in the status of the individual himself.
Article 23 of the Civil Code of the Russian Federation obliges citizens to obtain the status of individual entrepreneurs when conducting business activities. However, the need to register a citizen as an individual entrepreneur is associated not simply with the completion of paid transactions, but with the implementation of a special type of activity.
In other words, the fact that a citizen has entered into transactions for a fee is not enough to recognize him as an entrepreneur if the transactions he makes do not constitute an activity.
Tax officials indicated that the following facts may indicate the presence of signs of entrepreneurial activity in a citizen’s actions:
- production or acquisition of property for the purpose of subsequent profit from its use or sale. For example: the acquisition of freight transport for the provision of cargo transportation services, the acquisition of non-residential premises for subsequent rental, or the acquisition of professional equipment and tools;
- keeping records of business transactions related to transactions. This can be evidenced by documents, contracts, receipts, which are usually confiscated during a search;
- the interconnectedness of all transactions made by a citizen in a certain period of time, for example, the incurrence of costs for the maintenance of this property;
- regularity of activity, i.e. the presence of stable connections with sellers, buyers and other partners.
Let us recall that in accordance with the All-Russian Classifier of Types of Economic Activities OK 029-2001 (NACE Rev. 1, approved by Resolution of the State Standard of Russia dated 06.11.2001 N 454-st “On the adoption and implementation of OKVED”), economic activity takes place when when resources, equipment, work force, technology, raw materials, materials, energy ( informational resources) are combined into manufacturing process aimed at producing products (providing services). Economic activity characterized by production costs, the production process and the output of products (provision of services).
Thus, if the rental or rental of property or the purchase and sale of property are carried out in the presence of signs of economic entrepreneurial activity, then the citizen is obliged to register with the tax authorities as a private legal entity.
If these transactions do not contain signs of economic entrepreneurial activity, then the citizen has no obligation to register.
A similar point of view was expressed by the Ministry of Finance of Russia (Letter dated September 22, 2006 N 03-05-01-03/125).
We believe that this approach to a citizen’s entrepreneurial activity should be applied not in relation to renting, hiring, buying and selling real estate, but also in relation to other types of civil law contracts (contracts, paid provision services, rental vehicle with crew).
What are the consequences of failure to comply with legal registration requirements?
Thus, if a citizen carries out entrepreneurial activities without registering as a private legal entity, then he does not have the right to refer to the transactions concluded by him to the fact that he is not an entrepreneur. And the court has the right to apply to such transactions legal norms on obligations associated with the implementation of entrepreneurial activities (clause 4 of article 23 of the Civil Code of the Russian Federation). A similar rule is provided for in Art. 11 of the Tax Code of the Russian Federation, as well as in Art. 2 of the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums in Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund."
Now about responsibility.
Neglect of the requirements for state registration of an individual as a legal entity may entail administrative responsibility, which can result in a fine of 500 to 2000 rubles. (clause 1 of article 14.1 of the Code of Administrative Offenses of the Russian Federation).
Individual cases of sale of goods (performance of work, provision of services) by a person not registered as a legal entity do not constitute this administrative offense, provided that:
- quantity of goods;
- its range;
- volumes of work performed, services provided;
- other circumstances -
do not indicate that this activity was aimed at systematically making a profit (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 N 18 “On some issues that arise for the courts when applying the Special Part of the Code of the Russian Federation on Administrative Offences”).
What can be evidence confirming the fact that these persons are engaged in activities aimed at systematically generating profit?
It can be:
- testimony of persons who paid for goods (work, services);
- receipts for receipt of funds by the citizen;
- statements from his bank accounts;
- acts of transfer of goods (performance of work, provision of services) -
provided that from these documents it follows that cash received for the sale of specified goods (performance of work, provision of services).
Evidence will also include:
- placement of advertisements;
- displaying samples of goods at points of sale;
- purchase of goods and materials;
- concluding premises rental agreements.
By the way, the lack of profit does not affect the qualification of offenses under Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, since making a profit is the goal of entrepreneurial activity, and not its obligatory result. Lack of income from entrepreneurial activity cannot serve as a basis for non-recognition of the activity being carried out as entrepreneurial.
In addition to an administrative fine, a citizen who does not want to register may face tax liability- according to Art. 116 of the Tax Code of the Russian Federation. Tax authorities by virtue of paragraphs. 7 clause 1 art. 31 of the Tax Code of the Russian Federation can charge taxes by calculation. In this case, the amount can be quite impressive. In addition, let's not forget about penalties and fines under Art. 122 of the Tax Code of the Russian Federation.
So, according to Part 1 of Art. 171 of the Criminal Code of the Russian Federation, carrying out entrepreneurial activities without registration, if this act is associated with the extraction of income on a large scale, is punishable by:
- a fine of up to 300,000 rubles. or in size wages or other income of the convicted person for a period of up to two years, or
- compulsory work for a period of 180 to 240 hours, or
- arrest for up to 6 months.
A large amount means income in an amount exceeding 1,500,000 rubles, and an especially large amount - 6,000,000 rubles.
Note. A particularly unlucky businessman may be attracted and to criminal liability according to Art. 171 of the Criminal Code of the Russian Federation.
If the income from regular activities exceeded 6,000,000 rubles. or a crime was committed by an organized group, then this act, in accordance with Part 2 of Art. 171 of the Criminal Code of the Russian Federation, is alternatively punishable by:
- a fine in the amount of 100,000 to 500,000 rubles. or in the amount of wages or other income of the convicted person for a period of one to three years;
- imprisonment for a term of up to five years with a fine of up to 80,000 rubles. or in the amount of wages or other income of the convicted person for a period of up to six months or without it.
