The systematic nature of profit. When work without registration becomes dangerous. Are the requirements of the tax inspectorate for the registration of an individual entrepreneur legitimate when renting a vehicle to legal entities

The law defines the systematic receipt of profit as the goal of entrepreneurial activity. Therefore, the systematic receipt of profit 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 of financial results. economic activity businesses 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 gross (balance sheet, total) profit and net - remaining after paying taxes and deductions from gross profit.

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

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 representative offices - income received through these permanent representative offices, reduced by the amount of expenses incurred by these permanent representative offices, 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.

At the same time, we are not talking about the actual receipt of profit, but about the corresponding direction of activity. Therefore, there may not be any profit as a result of such activity, but it will be recognized as entrepreneurial.

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

Some authors, however, along with making a profit, also consider the satisfaction of public interests as the goal of entrepreneurial activity. So, K.K. Lebedev defines entrepreneurial activity as one of the types of generally useful activity carried out in the sphere of the economy by any legally capable persons through the exploitation of their property or by performing other actions in order to achieve any results related to a change in the position of this property, and reimbursement of costs incurred in connection with this at the expense of 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, and social security.

4. Statutory means of making a profit:

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

The list of directions and spheres of entrepreneurial activity is formulated in the Civil Code of the Russian Federation as exhaustive, which does not seem quite correct, since in a market economy the directions and spheres of entrepreneurial activity are determined, first of all, by the needs of the market. The market demand for one or another type, direction and scope 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 refers to 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 is “extremely unsuccessful, also because it does not allow to distinguish between active economic activity (for example, in the production and sale of goods, works, services) and passive (for example, placement of funds in credit institutions, transfer of property for rent, etc.)”.

The concept of entrepreneurial activity is contained in.

Under entrepreneurial activity is understood as an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of works or the provision of services by persons registered in the manner prescribed by law.

Highlight some signs entrepreneurial activity.

1. systematic, that is, carrying out business activities for a certain period. However, the legislator does not define clear criteria for systematicity. Therefore, to qualify an activity as an entrepreneurial one, criteria such as:

The share of profit from entrepreneurial activity in the total income of a person;

profit margins;

Getting it a certain number of times for any reporting period, etc.

2. Independence, which includes two components:

a) organizational independence - the ability to independently make decisions in the process of entrepreneurial activity (volitional character);

b) property independence - the entrepreneur has a separate property for the implementation of entrepreneurial activities. Risky nature of entrepreneurial activity. Risk (from lat. risco - "sheer cliff") - the probability of not receiving the planned or expected positive result.

3. Independent property liability of the entrepreneur. The limits of such liability depend on the organizational and legal form of entrepreneurial activity.

4. legalized character. The presence of a special subject(entrepreneur) i.e. person registered as such in statutory okay. Entrepreneurial activity can only be carried out by persons registered in the manner prescribed by law. Carrying out business activities without state registration is an offense (Article 14.1 of the Code of Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation); Article 171 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation)).

5. Focus on systematic profit. Profit is understood as income minus expenses. In this case, it is the purpose of the person’s activity that is important, and not the fact of making a profit. Activities aimed at making a profit, but causing losses, are also entrepreneurial.

6. Extracting income from certain activity: sales of goods, provision of services, performance of work, receipt of income from the use of property (for example, renting out premises) and intellectual property of the entrepreneur.

7.Professionalism- a sign that suggests that the entrepreneur has certain knowledge and skills. At present, such a requirement is fixed in relation to far from all types of entrepreneurial activity (basically, the presence of a certain education is required for the implementation of licensed activities). However, it is indicated as mandatory in the legislation of Germany, France, etc.

Types of entrepreneurial activity are classified:

According to the form of ownership on the basis of which entrepreneurial activity is carried out: private, public, municipal;

By number of participants: individual, collective;

By the nature of the activity: production of goods, provision of services, performance of work and etc.

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How to determine if your activity is entrepreneurial or not? For example, a homeless man who collects bottles and delivers them to a collection point - are there signs of entrepreneurship in his work? And in the work of Petrovich, who made repairs to all the tenants of our house and went to conquer the neighboring high-rise buildings? By the way, yesterday I went to the village in my car and brought two fellow travelers, they gave me some money when I left. Now I’m sitting and thinking: “Maybe, as an honest citizen, I am now obliged to register an individual entrepreneur and hang checkers on the roof?” Let's see what signs characterize the presence of entrepreneurship in your actions. Actually, there are only three of them.

Organizational and property independence

So, the first sign is independence. It has two components: organizational and property.

Organizational component is the ability to make decisions independently in the course of their activities. For example, a homeless person decides what time he will go in search of bottles. He also develops his own working route. And if he wants to, he won’t go anywhere at all - he will make himself a day off. In general, he is independent in making decisions. He has no higher authorities, because he does not work anywhere. On the contrary, he is his own employer.

Property component- this is an independent use in the work of own or borrowed property. For example, Petrovich rented a hammer drill and went to drill his client's walls with it. In fact, the instrument is someone else's, but this does not prevent Petrovich from making money with it. The key factor is not the right of ownership, but the ability to dispose of property at one's discretion.

So, if you are independent, then congratulations - this is the first sign of entrepreneurial activity! Go ahead.

Focus on profit

The goal of any business is to make a profit. Ask yourself the question: “Am I doing this to earn something?” If so, then your actions correspond to the second sign of entrepreneurial activity. I want to draw your attention to this:

What is important is the focus on making a profit, and not the fact of its receipt.

You can, due to various circumstances, work at a loss for a whole year. However, this does not mean that your activity is not aimed at making a profit.

For example, Mega-Loch sells toilet paper in the center of the capital. They buy goods for 50 kopecks, and sell for 1 ruble. Is there a profit motive? There is.

However, according to the results of the month, the accountant Senya Lopukhov, having calculated all income and expenses, is surprised to find that the company's activities turned out to be unprofitable - the rent of premises was “eaten up” all the profit.

There is no profit, but there is a focus on obtaining it, and this is precisely the second sign of entrepreneurial activity.

By the way, but in my case with fellow travelers there is no focus on making a profit. I was going to the village, my trip did not provide for the provision of transport services for money. Also, I did not announce any fares to my passengers - they independently decided on the amount of my remuneration. In general, checkers are canceled, gentlemen.

Systematic implementation of activities

You can give a ride to a fellow traveler once and receive a symbolic reward from him, or you can hang “checkers”, set tariffs and “taxi” around the city all day long. Do you feel the difference? This is systematic - the last sign of entrepreneurial activity.

What are the criteria for determining consistency? If Petrovich steadily repairs three apartments a month, is this already systematic? And if - twenty apartments? What if one? It is clear that one apartment is not much, but if this is done monthly, then regularity is visible here. However, you must admit that it is difficult to call the monthly performance of one small cosmetic repair a business. How, then, to understand whether the activity is systematic or not?

The fact is that the legislation does not define clear criteria for systematicity. So final decision depends on "verifiers" who will analyze your activity for the presence of direct and indirect factors of regularity in it.

Direct factors of systematicity. There are two of them, and they are considered in the complex:

• The frequency of making a profit over a certain period of time. You can calm down your neighbor for a nominal fee, or you can go to three or four addresses every day. It is clear that in 30 days you will have up to a hundred trips. If you wish, it will not be difficult to prove the systematicity - just a few testimonies from customers who ordered services from you about paying you a certain remuneration are enough.
• The amount of profit received for a certain period of time. Homeless Grisha can bring glass containers to the collection point twenty times a day. However, his average monthly income is unlikely to attract the attention of a tax inspector. Quite another thing is modest Isaak Moiseevich, who supplies gold to jewelry workshops only once a month, but in kilograms. As you can see, Isaac rarely works, but aptly - the amount of his income is simply impressive.

Indirect factors of systematicity. They do not directly indicate the systematic conduct of activities, but they have all its signs. There are the following indirect factors:

• The presence of advertising in the media and the Internet. If you regularly advertise your products or services, then this only means one thing - you are set to systematically receive income from the advertised activities. By the way, many "tax officials" are through the Internet and ads in advertising newspapers out on people engaged in illegal business. They simply call ads, introduce themselves as potential customers and easily get all the necessary information.
• Availability of prices and tariffs. If you ask Petrovich about the cost of his services, you can hear the following: "Window slopes - "x" rubles, whitewashing the ceiling - "y" rubles, plastering the walls - "z" rubles. Everything is laid out on the shelves and has its price. You immediately understand that Petrovich is engaged in repairs seriously and not for the first day, which means systematically.
• A lot of time is devoted to activities. If a girl Masha spends all her main time on the Moscow - St. Petersburg highway, doing it, then this is a sure sign of the regularity of her classes. Actually, what was required to prove.

So, friends, we have considered the main signs of entrepreneurial activity. By the way, why did we do this? Why do we need to know about them? Most often, these signs are of interest to those who fear accusations of illegal business. Do you know what illegal business is, and what responsibility threatens for its conduct? I think it's time.

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 entrepreneurship only after state registration. Such a requirement is established by Russian legislation (Article 23 of the Civil Code of the Russian Federation).

Note. Own business is great, but 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, receiving even the income itself will be regarded as. And then - trouble in the form of responsibility. Administrative, tax and even criminal.

In relation to the activities of citizens entrepreneurial activities 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 obtained systematically.
Thus, if you, a citizen, directly participate in transactions on your own behalf and in your own interests, you yourself bear the risk of losses and, as a result, receive a systematic income, then there is an obligation.
What does "systematic" mean? There is no such definition in civil law, and the definitions given by other branches of law are diverse.
In the Tax Code (Article 120 of the Tax Code of the Russian Federation), regularity means "two or more within one calendar year." Antimonopoly legislation (clause 11, article 4 federal law No. 135-FZ of July 26, 2006 "On Protection of Competition") extends this period to three years.
The Ministry of Finance of Russia believes that systematic means at least once a month ( Guidelines on accounting of 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 PBOYuL, 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 can be stated with certainty that one-time transactions within the framework of civil law agreements cannot indicate the receipt by an individual of any entrepreneurial income.
However, the regular receipt of income under civil law contracts is not always an entrepreneurial activity.
So, for example, the Moscow tax authorities in Letter No. 28-10/28916 dated March 30, 2007 advised their colleagues to consider the following in relation to transactions with real estate by individuals.
The Tax Code of the Russian Federation does not establish the obligation to register as PBOYuL individuals participating in lease relations and (or) transactions for the sale and purchase of property owned by them.
Income received by individuals from the lease (lease) and (or) sale of 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. According to the civil law, movable and immovable property that is in personal ownership individual, is a material value, acting 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.

Article 23 of the Civil Code of the Russian Federation obliges citizens to obtain the status of individual entrepreneurs when doing business. However, the need to register a citizen as individual entrepreneur is connected not only with the commission of paid transactions, but with the implementation of a special kind of activity.
In other words, the fact that a citizen makes transactions on a reimbursable basis for recognizing him as an entrepreneur is not enough if the transactions he makes do not form an activity.
The tax authorities pointed out that the following facts may indicate the presence in the actions of a citizen of signs of entrepreneurial activity:
- production or acquisition of property for the purpose of subsequent profit from its use or sale. For example: purchase freight transport for the provision of cargo transportation services, the acquisition of non-residential premises for subsequent leasing or the acquisition of professional equipment and tools;
- Keeping records of business transactions related to the implementation of transactions. This can be evidenced by documents, contracts, receipts, seized, as a rule, already during a search;
- the interconnectedness of all transactions made by a citizen in a certain period of time, for example, incurring costs for the maintenance of this property;
- regularity of activity, i.e. the presence of stable relationships with sellers, buyers and other partners.
Recall that, in accordance with All-Russian classifier types of economic activity OK 029-2001 (NACE Rev. 1, approved by the Decree of the State Standard of Russia dated 06.11.2001 N 454-st "On the adoption and entry into force of OKVED") economic activity takes place when resources, equipment, work force, technology, raw materials, materials, energy ( informational resources) are combined into manufacturing process, with the aim of producing products (rendering services). Economic activity is characterized by production costs, the production process and output (services).
Thus, if the lease or lease of property, or the sale and purchase of property is carried out in the presence of signs of economic entrepreneurial activity, then the citizen is obliged to register with the tax authorities as a PBOYUL.
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 such an approach to the entrepreneurial activity of a citizen should be applied not to rent, hire, purchase and sale of real estate, but also to other types of civil law contracts (contracts, paid provision services, rent vehicle with crew).
What are the consequences of not complying with the registration requirements of the law?
So, if a citizen carries out entrepreneurial activities without registering as a PBOYUL, then he is not entitled to refer, in relation to the transactions concluded by him at the same time, to the fact that he is not an entrepreneur. And the court has the right to apply to such transactions the legal norms on obligations related to the implementation of entrepreneurial activities (clause 4, 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, Fund social insurance Russian Federation, Federal Compulsory Medical Insurance Fund.
Now about responsibility.
Neglect of the requirements for state registration of an individual as a PBOYUL may result in administrative responsibility, which can result in a fine of 500 to 2000 rubles. (Clause 1, Article 14.1 of the Code of Administrative Offenses of the Russian Federation).
Separate cases of the sale of goods (performance of work, provision of services) by a person not registered as a PBOYuL do not form part of this administrative offense, provided that:
- quantity of goods;
- its assortment;
- volumes of performed works, rendered services;
- other circumstances -
do not indicate that this activity was aimed at systematic profit making (clause 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated October 24, 2006 N 18 "On some issues that arise with the courts when applying the Special Part of the Code of the Russian Federation on Administrative Offenses").
What can be evidence confirming the fact of employment named persons activities aimed at systematic profit?
It can be:
- testimonies of persons who paid for goods (works, services);
- receipts for the receipt of funds by a citizen;
- statements from his bank accounts;
- acts of transfer of goods (performance of work, provision of services) -
provided that it follows from the said documents that cash received for the sale of these goods (performance of work, provision of services).
The evidence will also be:
- placement of advertisements;
- exhibiting samples of goods at points of sale;
- purchase of goods and materials;
- conclusion of lease agreements for premises.
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 the implementation of entrepreneurial activities cannot serve as a basis for non-recognition of the ongoing activities 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 p. 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 a fine 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, an especially large amount - 6,000,000 rubles.

Note. A particularly unlucky merchant may be attracted and to criminal liability under Art. 171 of the Criminal Code of the Russian Federation.

If the income from regular activities exceeded 6,000,000 rubles. or the crime is committed by an organized group, then this act, according to Part 2 of Art. 171 of the Criminal Code of the Russian Federation, alternatively punished:
- 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 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.

Tax and other regulatory authorities quite often bring certain persons to responsibility for illegal business. Every day there are many convictions for this crime. However, even the courts often have questions related to its legal qualification. 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 "an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the 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 law (including entrepreneurial ones. - Ed.) Are citizens and legal entities" (clause 1, article 2 of the Civil Code of the Russian Federation), they are the subjects of the corpus delicti under 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) will not be considered in this paper.

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, Article 23 of the Civil Code of the Russian Federation). Rules are applied to it, "which 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, Article 23 Civil Code of the Russian Federation).

The Code distinguishes several categories of such citizens and, on this basis, connects the moment they acquire special legal personality with the onset of various events:

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

The legal capacity and legal capacity of a legal entity arise and terminate simultaneously at the time of its creation and at the time of making an entry on its exclusion from the Unified State Register of Legal Entities (clause 3, 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 obtaining a special permit (license). According to civil law, "the right to carry out activities for which a license is required arises from the moment such a license is received or within the period specified in it and terminates upon the expiration of its validity period, unless otherwise provided 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 a classification is the purpose of the activity. Commercial organizations are business entities. The main purpose of their work is to make a profit. At the same time, non-profit organizations are not business entities, 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 shows its positive and negative significance for criminal law qualification. illegal business.

Objective and subjective sides of the crime

Let us turn to the definition of illegal business, which is given in Art. 171 of the Criminal Code of the Russian Federation. It is understood as "carrying out entrepreneurial activities without registration or in violation of the registration rules, as well as submitting documents containing deliberately false information to the body that carries out state registration of legal entities and individual entrepreneurs, or carrying out entrepreneurial activities without a special permit (license) in cases when such permission (license) is obligatory, or in violation of licensing requirements and conditions, if this act caused large-scale 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 start 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 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 outwardly absolutely legal, but entailing illegal receipt of income.

Therefore, the Plenum of the Armed Forces of the Russian Federation indicated that "in cases where a person, with the aim of generating income, is engaged in illegal activities, liability for which is provided for by 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 analogues), what he has done does not require additional qualification under Article 171 of the Criminal Code of the Russian Federation" (paragraph 18 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of November 18, 2004 N 23, hereinafter - Resolution N 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 rather, to the problem of establishing their circle. As noted above, the legislator, in order to qualify the act as illegal entrepreneurship, established two types of vice of the subject:

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

Defect in registration can be expressed in various forms. It can be either a lack of registration or a violation of its rules.

At the same time, "carrying out entrepreneurial activity without registration will take place only in those cases when in the Unified state register for legal entities and the Unified State Register for Individual Entrepreneurs, there is no entry on the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or there is an entry on the liquidation of a legal entity or the termination of an individual's activities as an individual entrepreneur "(clause 3 of Resolution N 23). Under the implementation of entrepreneurial activities in violation of the rules of registration should be understood as "the conduct of such activities by a business entity, which knowingly knew that violations were committed during registration, giving grounds for declaring the registration invalid (for example, documents were not submitted in full, as well as data or other information necessary for registration, or it was carried out contrary to existing prohibitions" (paragraph 3 of Resolution No. 23).

Civil Code The Russian Federation twice admits the possibility of legally conducting entrepreneurial activities 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 engaged in entrepreneurial activity without forming a legal entity in violation of the requirements: (on registration. - Auth.) is not entitled to refer to the transactions concluded by him at the same time that he was not an entrepreneur. The court may apply to such transactions rules: (Civil Code of the Russian Federation. - Auth.) on obligations related to the implementation of entrepreneurial activities".

It should be noted that the provision 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 legitimization of illegal actions and the application of a special regime to the legal relations that have arisen legal regulation.

Fixing in para. 1 p. 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 admitted the possibility of the existence of "backlash". At least five days must pass from the moment the company is created to the moment of its state registration and making an entry in the Unified State Register of Legal Entities. This is the term for registration of legal entities. This exception cannot be ignored. Illegal business should be really illegal. In addition, exceptions are special rules - both in relation to the rules on state registration of legal entities and IPBOYuL, and in relation to the rules of criminal law (for example, in relation to the rule contained in Article 171 of the Criminal Code of the Russian Federation).

There is one more nuance: commercial activity companies owning property on the right of economic management and operational management, as well as non-profit organizations, which do not distribute profits among the participants, but in the course of their activities they extract it with enviable constancy. 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 from what point "systematicity" begins, given that entrepreneurial activity is of a continuing 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 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, it may be necessary to additionally qualify such an act under Art. 159 of the Criminal Code of the Russian Federation "Fraud".

The interpretation by the Plenum of the Supreme Court of the Russian Federation of the legal qualification of the activities of a legal entity with special legal capacity and, therefore, incapable of conducting other activities, except for the one for which it was created, looks very original, as activities without registration or as activities without a license (paragraph 6 of Resolution N 23). Here the Plenum contradicts itself: paragraph 6 of Resolution No. 23 contradicts paragraph 3 of the same resolution, expanding the content of the concepts "activities without registration" and "activities without a license." It seems that in this case the Plenum of the Supreme Court of the Russian Federation should have used 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 activity outside the limits of exclusive competence cannot be recognized as activities without registration.

Liability: criminal, tax, administrative

If a person conducts entrepreneurial activities without registration (Article 171 of the Criminal Code of the Russian Federation), the state does not have the opportunity to accurately determine the amount of his income - the taxable base and calculate the amount of taxes or fees. Registration is carried out by the Federal Tax Service of the Russian Federation (Article 2 of Federal Law No. 129-FZ of 08.08.2001). The Tax Code of the Russian Federation provides for administrative liability for violation of the deadline for registration in tax authority(Article 116 of the Tax Code of the Russian Federation) and evasion of such (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 entrepreneurial activities without state registration or a special permit (license), duplicates the provisions of the Tax Code of the Russian Federation (in particular, clause 1, article 117 of the Tax Code of the Russian Federation).

At the same time, it should be borne in mind that the Code of Administrative Offenses of the Russian Federation refers to administrative responsibility for carrying out entrepreneurial activities without state registration. tax code 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 responsibility in the event that a person commits one or another of the above offenses.

When limiting the scope of the norms of administrative and criminal law, it must be borne in mind that the criminal law norm (Article 171 of the Criminal Code of the Russian Federation) is of a material nature (the material composition of an offense is a crime). A necessary condition for its application is the infliction of damage of a certain amount or illegal extraction of income in a certain amount. The administrative-legal norm is of a formal nature (the formal composition of the offense) and therefore does not require the establishment of the fact of causing damage. A mere formal violation of a legal order is sufficient (clause 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 N 18).

Unfortunately, the Presidium of the RF Armed Forces ignores a very important practical activities both law enforcement and judiciary bodies face the problem of delimiting the scope of the norms of administrative, criminal and civil law in the implementation of mixed legal regulation of the same legal relations. As a result, the question of the norm of which branch of law to apply to resolve a particular incident is always relevant and insoluble. Therefore, every time it is solved differently. And the meager amount of damage, established as the lowest limit for the application of the norm 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 for the same actions one person is brought to administrative and the other to criminal liability. Moreover, for the damage caused in the amount of 250,000 rubles and 1 kopeck, this person does not always receive a punishment in the form of a conditional measure. By the way, a third person can generally get off with a slight fright, having received a court decision on the recovery of some amount from him.

In the topic of "illegal business" there is one more question that needs to be disclosed. Namely - on 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 a general rule 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 tax evasion 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 defining these compositions as general and special in relation to each other, that is, the volume of one composition does not overlap with the volume of another. In addition, the subject composition of legal relations in these cases differs significantly: in cases of tax evasion 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 fiscal, as well as fiscal authority in the implementation of state registration and maintenance of a unified state register. Therefore, if there are signs of corpus delicti in the actions of a person under Art. 171 and 198 (199) of the Criminal Code of the Russian Federation, they should be qualified in aggregate. This is confirmed by paragraph 2 of Resolution No. 23, in which the Plenum of the Supreme Court of the Russian Federation indicates how to qualify the actions of an individual who has acquired property and leases it out without paying taxes.

E.V. Semyanov,
MGKA, Ph.D. Sciences