home Remote work and freelance What threatens for illegal entrepreneurial activity. What is the penalty for illegal business? Illegal business and tax services

What threatens for illegal entrepreneurial activity. What is the penalty for illegal business? Illegal business and tax services

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's look at the definition entrepreneurial activity. According to civil law, such is "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 work or the provision of services by persons registered as such in statutory order" (clause 1, article 2 of the Civil Code of the Russian Federation).

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 involvement of public law entities (e.g. Russian Federation, subjects 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 state registration as 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 subjects of entrepreneurial activity. 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 the criminal law qualification of illegal entrepreneurship.

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).

The Civil Code of the Russian Federation twice allows for the possibility of legally conducting entrepreneurial activities without registration, both for citizens and 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: the commercial activities of companies that own property on the basis of 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 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 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 with the 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. 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 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

Pentrepreneurial activity- risky economic activity, aimed at the systematic profit from the production and sale of goods, the provision of services, the performance of work. For this purpose, property is used intangible assets, the work of both the entrepreneur himself and those involved from the outside.

Illegal business- this is a commercial practice that is permanent and is carried out contrary to the norms of the law.

The implementation of commercial illegal activities without registration with the tax authorities is punishable by law. Therefore, a citizen who regularly provides services or sells goods simply needs to register his business. What is the penalty for an entrepreneur illegal activity we will tell in detail in our article.

Liability for illegal business activities

Any illegal activity is punishable, and the nature of responsibility for the deed differs in the category of "harmfulness" and harm (damage). Such a negative effect in the form of damage is caused to people, other legal entities, private entrepreneurs, and the state. Consider the main types of responsibility.

Criminal (UK)

The toughest and most radical type of responsibility, this is justified by the fact that it provides for serious types of punishment. This form of liability is enshrined in the Criminal Code. For example, he is responsible for illegal commercial business activity. Citizens should be aware that only the guilty can be held criminally liable. individuals, among which:

Entrepreneurs.
Managers, owners of legal entities.
Actual managers or owners of an unregistered enterprise, organization.

Administrative (CAO)

Provides only for penalties that are not global (not in large volumes) in nature, in particular - from 500 to 2000 rubles ( smallest view sanctions). Legislators have provided for this type of liability in the Code of Administrative Offenses.

The amount of penalties directly depends on the presence of repetition, the attitude towards the offense of the entrepreneur himself, the subject of the offense, and, no doubt, the type of offense. The main forms of such offenses are:

Violation of licensing rules. There are two types of offense according to severity: violation of the terms of the license, gross violation of the terms of the license.
Accordingly, depending on this, sanctions will also vary. So, for the first type of violation, a fine is provided from 1500 to 40000 rubles, and for the second - from 4000 to 50000 rubles, including the possibility of suspension of activities up to 90 days.
No license. Punishable by money from 2000 to 50000 rubles with the confiscation of unlicensed products, as well as raw materials.
Work without registration – from 500 to 2000 rubles. As mentioned above, the mildest form of punishment.

tax

The main purpose of registration and licensing of enterprises is to replenish the budget. Such replenishment is carried out at the expense of taxes and fees. Therefore, by right, tax is the main type of responsibility.

Tax liability is material and compensatory in nature. That is, in addition to taxes not received by the state, you will also have to pay a fine for tax evasion. Tax liability for illegal business is provided for by Art. 116 of the Tax Code.

Varieties of illegal entrepreneurial activity

There are several types of such illegal activity:

Prohibited by law. This type usually includes the production, sale, transfer, storage of narcotic and psychotropic substances, the creation, sale of weapons.
A business that is not registered in accordance with the procedure established by the state. In order to enter into relations with counterparties for the purpose of buying, selling, marketing, exchanging any products, providing services on a commercial basis, you must have a certain status - a legal entity or an individual entrepreneur. But, as you know, in order to obtain such a status, it is necessary to register, that is, to give a legal form to your business. If, for example, you systematically provide paid hairdressing services at home and do not have official registration as an enterprise or entrepreneur, then know that your activity has nothing to do with the law, and appropriate liability measures are provided for it.
Lack of a license when performing licensed activities and violation of licensing rules. A license is a legal permission to engage in a particular business. Not every type of activity implies obtaining such a permit, but there is a certain list of such types. Among the most popular are activities related to the production of alcohol, pharmaceuticals, medical and educational practices.
The activities of the company in violation of the statutory provisions (in violation of the rules of registration). The charter is the main document of the enterprise, the basis of its functioning. The charter, as the basis for the existence of the enterprise, indicates the leading and additional activities. If the organization is engaged in any other types of activities not provided for by the Charter, this can only be regarded as illegal activity.

Which state bodies can reveal the fact of illegal entrepreneurial activity

In order to control the functioning of entrepreneurs and legal entities in the state, competence is distributed among specialized bodies designed to protect the law and promote a direct flow of profit to the budget.

These bodies are engaged in monitoring the activity of entrepreneurial activity, as a result of which they sometimes reveal violations of the law in the field of entrepreneurship.

These bodies are:

Tax office. This is the main body that monitors the replenishment of budget funds in the form of taxes. In order to detect illegal activities, tax inspectorates conduct inspections, pay visits, and carry out raids. The IFTS has the right to bring tax liability for violation of legislation in the field of entrepreneurship.
Antimonopoly committee. A specific body created to ensure transparency and legality, freedom of competition. Their activities are aimed at establishing the integrity of relations between business entities and the cleanliness of doing business. The Antimonopoly Service has the right to bring those responsible for violation of the law to liability, which is administrative in nature.
consumer market regulators. The prevailing body is Rospotrebnadzor, whose main function is to protect the rights of consumers. They have powers in the field of bringing to administrative responsibility. The main offenses identified by this body in the field of entrepreneurial activity include violations in the field of trade. Also, bodies of this type include services for veterinary and sanitary supervision, for supervision in health care. These bodies are the link between offenders and law enforcement agencies.
Police. As a law enforcement agency, it is engaged in identifying any offenses, accepting applications from citizens, initiating cases on the fact of illegal entrepreneurial activity.
Prosecutor's office. It also appears to be a law enforcement agency. Identifies offenses (crimes), has the right to prosecute. Supervises the police, is a representative of the state and the applicant in court when considering cases related to the illegal activity of legal entities and private entrepreneurs.

Types of business activities that do not require licensing

There are some types of business activities for which registration is not a mandatory requirement. These types of business activities are personal in nature, mainly the provision of some kind of service.

It is worth paying attention to the following types:

Tutoring, homeschooling. Any citizen can engage in tutoring without acquiring a license from the state. You can engage in tutoring both as an entrepreneur and without registering an individual entrepreneur. But it is worth paying attention that if a citizen is not registered as an entrepreneur, then his services cannot be systematic.
Cleaning of residential premises. A citizen can provide residential cleaning services without issuing an IP. These services can be arranged by entering into a simple service contract, providing such services will pay the usual standard personal income tax of 13 percent.
Day care for children. AT modern world private kindergartens providing day care for children have become popular. The implementation of this kind of activity is in the nature of individual labor pedagogical activity, which does not require a license.
Some agricultural services. One-time agricultural services that are not permanent in nature do not require official permission from the state. Taking a special case, it should be noted that such a service will be the provision of a land plot for rent.

Criminal liability and possible penalties

As mentioned above, the Criminal Code provides for quite serious sanctions for carrying out illegal business activities. Criminal liability occurs:

in the case of systematic recorded employment in illegal business activities;
in the event of receipt of income from illegal commercial activities on an especially large scale;
when causing significant damage to citizens of the Russian Federation, organizations and state interests in the course of illegal business activities;

When acquiring profit on a large scale, the offender may be liable in various forms, which have an alternative character:

pecuniary recovery up to 300,000 rubles;
penalty wages convict (other type of income received) for a period of up to 2 years;
arrest up to 6 months;
mandatory work for up to 480 hours;

For a more serious violation of a criminal nature, where the aggravating elements are the group commission of a crime, as well as the receipt of monetary benefits on an especially large scale (6,000,000 rubles), the following types of sanctions are provided:

fine from 150,000 to 500,000 rubles;
offender's wages (other income) for a period of 1 to 3 years;
imprisonment for up to 5 years with an accompanying fine of up to 80,000 rubles or recoverable income from illegal operation for a period of up to 6 months, and also without additional penalties;

Tax liability and penalties

In connection with the changes that have taken place, today there are two types of tax offenses related to the illegitimate activity of a private entrepreneur and organization:

Violation of the terms of registration (filing an application);
Functioning without appropriate tax registration - registration.

Penalty for late registration with the Federal Tax Service has a fixed nature and amounts to 10,000 rubles. According to Art. 83 of the Tax Code, the taxpayer is obliged to submit documents for registration within 10 days after state registration. If state registration is carried out at the location of a separate subdivision or at the location of real estate - within 30 days.
Entrepreneur not registered with the Federal Tax Service. If at the time of the audit by the tax inspectorate a person engaged in entrepreneurship did not submit a package of documents for the purpose of registration, then such a person bears tax liability. For this type of misconduct, a monetary penalty is expected in the form of 10 percent of the income received by the offender from his illegal activity. The minimum fine is 40,000 rubles.

Protection from illegal business activities

If you have caught an enterprise or entrepreneur in illegal operation, and believe that such activity harms you in a way, you always have the right to contact the control and law enforcement in order to apply measures of influence and bring the offender to justice.

The most common cases of appeal are applications to the police, prosecutors and tax authorities

Many of us periodically provide some services to our acquaintances (or their acquaintances): help with repairs, get a haircut, order some goods via the Internet, sew a dress or repair a car. And they do it for a certain fee. And if such a business clearly goes beyond the scope of a small part-time job and begins to bring tangible profits, it can be qualified as illegal business. Not only the tax authorities, but also the police and other structures may be seriously interested in this activity.

You also need to know that in order to perform certain types of work, it is not enough to register as an individual entrepreneur or open a company - you will also need a special permit (license). This applies to medical and cosmetic services, passenger traffic, design work, etc. Running such a business without all the proper paperwork is a much more serious offense than just unregistered business.

Letter of the law

Entrepreneurial, according to Civil Code, is an activity that is carried out for the purpose of systematic obtaining profit at your own risk. Profit can be obtained by carrying out work, selling goods, leasing property, providing paid services. A citizen conducting commercial activities must register as an entrepreneur without fail.

As you can see, the main differences between a private transaction between citizens and entrepreneurship are the systematic activity and profit making. So, a one-time purchase and sale transaction or once rendered paid service cannot be considered illegal business activities. But produced twice or more within a year, they become systematic and fall under the definition of commercial activity.

However, if it is a question of selling a product at the price for which it was purchased (or less), this will in any case be considered a private matter: there is no profit. Such activity cannot be considered entrepreneurial, even if it is done systematically.

Illegal business in Russia is considered:

Commercial activities that are carried out without registration individual entrepreneurship or legal entity. This also includes activities executed with violations or with indication of false data in the registration documents.
Entrepreneurial activity carried out without a license, if one is required.
Gross violations of licensing requirements.
Illegal business can lead to serious trouble for the entrepreneur. For this offense, the legislation provides for three types of liability: tax, administrative and even criminal.

Administrative responsibility

The Code of Administrative Violations for conducting illegal commercial activities provides for the following penalties:

For activities that are not duly registered (individual entrepreneurs or LLCs), a fine is imposed in the amount of 500 to 2000 rubles.
For the implementation of those activities that are subject to compulsory licensing, without appropriate permits, fines can be imposed: individuals - from 1 to 2.5 thousand rubles, for officials - 4-5 thousand rubles, for legal entities - 40-50 thousand rubles. At the same time, unlicensed products and their means of production may be confiscated.
If there is a license, but licensing requirements are violated, this is also fraught with penalties: for citizens - in the amount of 1.5-2.5 thousand rubles, for officials - 3-4 thousand rubles, for organizations - from 30 to 40 thousand .rubles
If the licensing conditions are grossly violated, entrepreneurial activity may be suspended for 90 days, the fine in this case is 4–5 thousand rubles for individuals and officials, and 40–50 thousand rubles for organizations.

To establish the fact of illegal business can:

tax office,
antimonopoly committee,
consumer market regulators,
police,
prosecutor's office.

A protocol on offenses can be drawn up as a result of verification activities: inspection of the premises, test purchases, etc. The reason for such a check can be any signal that illegal business activities are being carried out or violations in work are allowed.

Cases of illegal entrepreneurship are considered by a justice of the peace at the place of its implementation or at the place of residence of the offender. Such a case must be considered within two months after the relevant protocol is drawn up. If this does not happen, the case should be closed. If the protocol is drawn up with violations, there are contradictions and inaccuracies in it, the violator can avoid punishment: while the protocol is being reissued and errors are corrected, the period allotted for bringing to responsibility may expire.

Criminal liability

In some cases, illegal entrepreneurial activity can lead to criminal liability. This happens if the state, organizations or individuals are seriously damaged as a result of such activities, or when the entrepreneur receives large profits from illegal business. A large amount (both damage and profit) is considered to be an amount from 250 thousand rubles, especially large - from 1 million rubles.

In this case, the illegal entrepreneur will be punished in accordance with the Criminal Code of the Russian Federation:

Causing damage on a large scale is punishable by a fine of up to 300 thousand rubles or in the amount of the offender's earnings for 2 years, 180-240 hours of compulsory work or imprisonment for 4-6 months.
Damage on an especially large scale or the same actions committed by a group of persons entail a fine in the amount of 100-500 thousand rubles or in the amount of earnings for 3 years or imprisonment for up to 5 years with payment of 80 thousand rubles to the state or in the amount of the convicted person's income for 6 months.

The prosecutor's office or the police must prove the fact of causing damage or extracting large income. It must be said that it is quite difficult to detect an offense that would fall under criminal sanctions: test purchases are usually made for small amounts, and therefore they cannot become evidence of super profits.

Responsibility for illegal business carried out commercial organization, falls entirely on its leader. The following are not subject to criminal liability:

citizens who have labor contract with an illegal entrepreneur and acting within the framework of this agreement;
owners of real estate for rent, regardless of the amount of income.

There are also circumstances that may mitigate criminal punishment. These include the positive characteristics of the perpetrator, as well as the singularity of the case of bringing him to justice.

In addition to the very fact of illegal entrepreneurial activity, an entrepreneur can be held criminally liable for:

use of other people's trademarks without appropriate permissions or indication of knowingly false information about the origin of the goods;
production, sale, purchase of counterfeit products.

Tax Liability

Sanctions for commercial activities without registration are regulated by articles 116 and 117 tax code RF. They involve the collection of taxes not received by the state, and penalties for tax evasion.

An entrepreneur who is not registered with the Federal Tax Service is fined in the amount of 10% of his income (at least 20 thousand rubles). Such punishment shall be applied if, by the time tax audit documents for registration were not submitted to the tax office at all.
Conducting commercial activities without registration for 90 days or more is punishable by a fine of 20% of income (but not less than 40 thousand rubles).
The penalty for late registration of business with the Federal Tax Service is 5 thousand rubles. If the delay in registration is more than 90 days, a fine of 10 thousand rubles will be charged. Such penalties apply if registration documents are submitted after the first revenue, but before the tax audit. Registration delay is considered from the moment of the first revenue.

In addition to fines for the lack of state registration or its delay, the tax authorities may charge additional unpaid taxes. In this case, an illegal businessman will need to pay personal income tax (PIT) on the entire amount of income, the receipt of which will be proven. To this should be added all penalties for late payment of taxes and a possible fine for their non-payment - it is 20% of the additional amount.

All these sanctions are applied to the violator only by a court decision.

As you can see, liability for illegal business activities can be quite serious. In addition, the tax authorities are quite actively involved in collecting information about "illegal immigrants", so it will be quite difficult to hide their activities from the interested services.

In some cases registration can be avoided. For example, if your business is to provide services to enterprises and organizations, you can document this cooperation (conclude a work contract or a one-time labor contract).

Registration as an entrepreneur is also optional for those who rent housing: it is enough to conclude an agreement with the tenant and pay personal income tax (personal income tax). In this case, you only need to file a declaration with the Federal Tax Service annually.

However, if you are seriously planning to engage in entrepreneurial activity, you should not delay its official registration: for a serious entrepreneur, there is nothing more important than business reputation, and troubles with government agencies can do a disservice here.

Penalty for illegal business: 7 features of entrepreneurial activity + 5 types of illegal business + 3 types of liability that a businessman who violates the law may incur.

With the Soviet Union gone into oblivion, the ban on private business activity also disappeared.

Today, anyone can become a businessman and earn money.

The only condition is to register officially and pay taxes to the state treasury.

Anyone who does not comply with this condition will receive a fine for illegal business.

Don't risk running an illegal business in the hope that you can get through. Do everything according to the rules and earn money as a law-abiding citizen.

Illegal entrepreneurship: the fine that is provided for it and the definition of the concept

In fact, each of the illegal entrepreneurs knows perfectly well that he violates the laws of the Russian Federation by doing business without official registration. But as soon as it comes to the responsibility that you have to bear for your business, it immediately begins: “Yes, I didn’t think that this qualifies as entrepreneurship”, “Yes, I didn’t earn so much”, “For what a fine”, etc. .d.

That is why it is better to study in a timely manner what signs illegal entrepreneurial activity has and what types it is.

1) What should be understood by the term "Illegal business"?

Some citizens of the Russian Federation do not fully understand whether they are engaged in entrepreneurship or their one-time action to make money can do without registration.

There are several features:

the frequency of the same transaction;
advertising your services;
bulk purchases of goods that you then sell or ingredients for the manufacture of products for sale;
customer base (not one or two people can confirm that they are your clients);
keeping records of their transactions;
profit that you receive regularly;
contracts (oral or written) that you enter into with suppliers, customers, distributors, etc.

As you can see character traits entrepreneurships have many activities that people are slow to register. For example:

baking and selling cakes at home;
manicure and other services in the beauty industry performed for girlfriends;
repair of cars and equipment, albeit infrequently, but for money;
selling crafts that you made yourself;
implementation a large number things, even if they belonged to you before, through online auctions, etc.

Let's now look at 2 situations that are not business activities, so penalties are not due for them.

Situation #1.

You inherited an apartment from your grandmother. You are happy with the apartment, but the old furniture that clutters up the living space is not very good.

You decide to arrange a sale in the courtyard of the house in order to sell things you don’t need for mere pennies (whoever offers how much). What is not for sale, you think to throw in the trash.

There is no need to register or obtain special permits for this one-time promotion.

Situation #2.

Do you have an empty apartment that you want to rent out. not necessary.

The conditions for conducting such activities are an official contract with tenants of housing, a timely filing of a declaration and the payment of taxes for the profits received.

Important ! As you can see, even without expertise it is clear what you are doing business or not. It is time to stop conducting illegal activities and become a legal businessman, otherwise fines cannot be avoided.

2) What is illegal business and what are the penalties for it?

In fact, there are quite a few types of businesses that qualify as illegal businesses.

Depending on the severity of the offense committed in regulations The Russian Federation provides for different types of punishment for attempts to illegally earn money.

Let's dwell on the most common types of illegal business, for which a fine or other punishment is provided:

Important ! Whatever you decide to do, make sure that your activity is completely legal and that you have issued it according to the official procedure. This will allow you to avoid unnecessary problems during state inspections.

Fines for illegal business and other penalties

There are three types of liability that is provided for illegal business:

administrative;
tax;
criminal.

As you can see, we are talking not only about fines, but also about other types of punishment.

1. Administrative liability and fines for illegal business.

The Code of Administrative Offenses of the Russian Federation (its article 14.1.1.) provides for different amounts of fines for a particular type of illegal activity.

The standard fines that will have to be paid to those who are engaged in entrepreneurship without official registration are 500 - 2,000 rubles.

But there are exceptions to this rule: the amounts may still increase depending on the conditions in which the violations were committed and the personality of the violator.

One protocol is not enough to impose a fine on you. The case must be considered by a justice of the peace, and it depends on his opinion what kind of punishment you will incur.

He has 2 months to make a decision.

Liability can be avoided if the protocol is drawn up illiterately and contains factual errors. But such happiness for illegal entrepreneurs does not always fall out.

Important ! Not only the police, but also others can draw up a report on illegal business government bodies: antimonopoly committee, tax, prosecutor's office, etc.

2. What fine for illegal entrepreneurship will have to be paid according to the Tax Code of the Russian Federation?

Articles 116 and 117 of the Tax Code of the Russian Federation are responsible for illegal entrepreneurship.

The tax authorities are primarily interested in the taxes they did not receive, which were supposed to replenish the state treasury.

There are three types of misconduct by an entrepreneur, according to the Tax Inspectorate, for which a fine or other type of liability is provided.

№	Violation	Punishment
1.	unregistered in tax office entrepreneur	10% of the income received by him, at least 20,000 rubles. The penalty is applied if, at the time of the tax audit, an application for registering an entrepreneur was not submitted to the inspection at all.
2.	Actual conduct of unregistered business activities for more than 90 days	A fine of 20% of the income extracted by a citizen, but not less than 40,000 rubles
3.	For delay in registering a business with the tax office	For the minimum delay- 5 000 rubles Overdue for a term of more than 90 days- 10 000 rubles

Keep in mind that in addition to the fine, you will most likely have to return to the treasury taxes that you could pay if you were officially registered.

In general, the amount is serious, so it's not worth the risk.

Important ! Such violations are discovered during scheduled or unscheduled inspections. A complaint filed by your competitor or a dissatisfied client is also considered, so you need to take care not only of compliance with the registration conditions, but also of the impeccability of doing business in all respects.

3. Criminal liability for illegal business.

If only your wallet suffers from administrative and tax liability for illegal business activities, then you can pay for a criminal offense with your freedom.

The amount of the fine depends on how much damage you have caused to the state with your entrepreneurship:

large size - 250,000 and more rubles;
especially large size starts from 1 million rubles.

Good news for illegal businessmen: it is very difficult for police officers and investigators to prove the very fact of causing damage on a large or especially large scale due to the nature of the procedure.

Bad news for illegal businessmen: Typically, such crimes are classified as money laundering (Article 174 of the Criminal Code of the Russian Federation) and are punished no less severely than illegal business. And the fines there amount to hundreds of thousands of rubles, and you can easily lose your freedom for two years.

Important ! If your illegal business has fallen under criminal liability, consider that the jokes are over for you. This will not only affect you, but your loved ones as well. Just imagine what a stain on the reputation of your family you will put with your actions. Why risk so much if you can register, get all the permissions, pay taxes on time and work quietly officially.

Entrepreneurial activity without registration.

What is the responsibility for the lack of IP or license?
Detailed consultation.

Citizens of the Russian Federation are asked to be vigilant and signal illegal business

In Russia, alas, the awareness of civil society is not as high as, for example, in Europe, where a violation of the law by one citizen will necessarily be met with a complaint to the law enforcement agencies of the second. And those who did business dishonestly will definitely receive a fine for illegal business.

In our country, such behavior is considered squealing and is condemned in every possible way.

The government, on the other hand, has a different opinion and asks the population to show civic consciousness, signaling cases of illegal business known to them.

Just think about the harm to the country's economy caused by hundreds of thousands of small and medium-sized businessmen who work in the shadows. What kind of security can we talk about if cosmetic services are provided in the apartment, and pastries are made in a dirty summer kitchen?

All that is needed for the manifestation of consciousness is to make a complaint in any form. The main thing is to indicate who and where is engaged in illegal business.

You can address your message to any government agency, for example, the police, tax, prosecutor's office, etc.

If the facts you indicated are confirmed, then the would-be businessman will receive a fine for illegal business, and we will take one more step towards building a power in which laws are respected.

Many of the readers are entrepreneurs and know that such activity can both enrich and ruin. In civil law, this is how private business- risk-based activity, the purpose of which is to make a profit. There are hundreds of types of entrepreneurship - in the first place, of course, trading activities, followed by construction, real estate, etc. Approximately the same number of types of illegal business activities, fines and other liability for which is provided for by the legislation of the Russian Federation.

The concept of entrepreneurship

In Russia, this term is defined using the following features:

All of the above features are typical for commercial activities. In addition, there are additional features that are mentioned in the explanations of the Supreme Court and the Department of the Tax Service of the Russian Federation: maintaining documentation on transactions that have taken place, as well as on common work IP, the presence of a relationship between operations and counterparties, etc.

Illegal business

The legislation of Russia prohibits conducting illegal business activities, for which both administrative (in the form of a fine) and criminal liability are provided. There will be a discrepancy with the law if such activity:

carried out without registration;
carried out without a state license.

Without registering

This means that you have not submitted information about yourself as an individual entrepreneur to the tax office, and at the same time you are actively engaged in commercial activities to make a profit.

Under the signs of illegality, such actions of a businessman may also fall, which were initially registered in accordance with the requirements of the law, but then the registration was terminated (upon an application, in connection with a court decision, etc.).

Example #2. Rakitin P.E. long time ago commercial activities(furniture production and subsequent sale), IP was issued to him several years ago. In view of the onset of the economic crisis, Raktinin P.E. decided to stop production and filed an application for exclusion from the register of entrepreneurs, which was done. A few months later, Rakitin P.E. decided to resume production, hired workers, set up machines, restored ties with suppliers and buyers, but did not register again as an individual entrepreneur in the prescribed manner. In this case, there are grounds for holding Rakitin liable for illegal business.

In rare cases, such actions of a private trader are also recognized as illegal when registration is available, but it was carried out illegally. In such situations, the falsity of the documents submitted for registration is revealed, on the basis of which an entry in the register was erroneously made.

Example #3. Konovalov E.N. submitted documents for registration of an individual entrepreneur, among which was an application indicating the OKVED code according to retail. Based on the submitted Konovalov E.N. documents, an entry was made on its registration as an individual entrepreneur in the register. Later it was established that in fact Konovalov E.N. led wholesale trade, while it was not registered as an individual entrepreneur. Konovalov's actions were regarded as illegal business.

Based on the clarifications of the Supreme Court of the Russian Federation, it follows that the actions of a citizen who initially acquired for personal use a certain thing, object, real estate, and subsequently entered into a lease agreement (even for a long period), since the property belonging to him was not useful.

Example #4. Nikeshina R.G. I bought a one-room apartment in which I lived. A year later, she got married and moved in with her husband, and began to rent out her apartment for replenishment. family budget. In this case, in the actions of Nikeshina R.G. there are no violations, since the originally purchased apartment was intended for personal use. However, if Nikeshina R.G. does not report for additional income and does not pay 13% of it, then there may be questions from the tax inspectorate, up to criminal liability under Art. 198 of the Criminal Code of the Russian Federation.

Without a license

In some cases, provided by law, for the legal activities of an individual entrepreneur, registration alone is not enough, you need to obtain a license.

Yes, in accordance with federal law FZ-99 dated 04.05.2011 "On Licensing certain types activities”, a license must be obtained:

for the production of alcohol-containing products;
for the activities of credit institutions;
non-state pension funds;
joint-stock investment funds;
insurance activities;
private security activities;
for business management apartment buildings etc.

The absence of a license in those cases that are reflected in the FZ-99 list entails liability for illegal business activities for individual entrepreneurs.

Example #5. Leonova A.P., who has a higher pedagogical education in the field of foreign languages, opened an educational center at her place of residence, while she was registered as an individual entrepreneur with the purpose of activity - “provision of other types of services”. During the audit carried out tax authorities, it was found that, in violation of the requirements of the law "On Licensing", Leonova A.P. did not receive a license for educational activities in accordance with the established procedure, which was the basis for bringing her to justice.

Violation will also occur in cases where the entrepreneur continues to operate, but:

the previously obtained license has been cancelled;
an application for a license has already been submitted to the licensing authority, but a decision has not yet been made (or a refusal to issue followed);
if the permit has expired.

When an entrepreneur is licensed to certain kind activity and at the same time is engaged in another type, for which it is also necessary to have a special permit, such entrepreneurship will also be considered not in accordance with the law.

Example #6. Dorin G.O. for many years he was engaged in private medical practice under a license obtained by him in the Ministry of Health of the region. After many years of work, he also began to engage in pharmaceutical activities, however, in violation of the requirements of federal law, he did not receive a license for this type, and was held liable in the form of a fine for illegal business activities.

Administrative responsibility

The decision to bring to administrative responsibility Article 14.1 of the Code of Administrative Offenses of the Russian Federation shall be issued by the justice of the peace of the judicial district in whose territory the offense was recorded.

How is a crime detected? With an inspection at the request of citizens or on their own initiative, an entrepreneur can be visited by a representative of the tax inspectorate, the police, the state inspectorate for trade, etc. These officials a protocol is drawn up, which reflects all the violations that were recorded.

After the protocol is drawn up, a person can be held administratively liable within two months, after which the proceedings on the material are terminated. According to part 1 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation for illegal entrepreneurial activity without registration is provided fine from 500 to 2000 rubles.

The verification may also consist in conducting a test purchase, the result of which will be significant, indisputable evidence of guilt. Typically, test purchases are used by the police to detect illegal business without a license, often in the sale of alcoholic beverages. In such cases, liability arises under Part 2 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, where the punishment may be in the form of a fine from 2000 to 2500 rubles with or without confiscation of manufactured products.

Example #7. The police received a message about the illegal business activities of IP Rasulov A.A., who traded in products in own store located in a residential area of the city. From a resident of the house, on the ground floor of which there was a shop, there were complaints that Rasulov did not have a license to sell alcoholic beverages. At the same time, as follows from the complaints, at night he sells vodka and beer to people who immediately consume purchased drinks in the courtyards of residential buildings. During the test purchase, the fact of selling alcohol in the absence of a license was confirmed, a protocol was drawn up under Part 2 of Art. 14.2 of the Code of Administrative Offenses of the Russian Federation. Subsequently, Rasulov A.A. imposed a fine of 2500 rubles.

Part 3 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation provides for punishment in the form of a fine up to 2000 rubles for illegal business when there are violations of the terms of the license. If such violations are recognized as gross, then punishment is imposed under part 4 of the specified article of the Code of Administrative Offenses of the Russian Federation (fine up to 8000 rubles). For each type of activity, the Decree of the Government of the Russian Federation establishes individual criteria according to which this or that violation of the conditions can be attributed to a number of gross ones.

Example #8. Markin E.P. registered as an entrepreneur, he was issued a license for transportation activities by car equipped to accommodate more than 8 people. Markin E.P. challenged in court bringing him to justice under Part 4 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, considering that the lack of equipment for checking the technical serviceability of cars is not a gross violation, he did not agree with the fine imposed on him in the amount of 8,000 rubles. Contrary to the arguments of Markin E.P., the court recognized the protocol drawn up against him under Part 4 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, since paragraph 5 of the Regulation on Licensing Transportation approved by the Government of the Russian Federation, the repeated absence of equipment and premises for car repair during the year is considered a gross violation.

Responsibility under the Criminal Code of the Russian Federation

For criminal liability for illegal business, one of the mandatory features, according to Art. 171 of the Criminal Code of the Russian Federation, is the infliction of large damage - that is, in excess of 2 million 250 thousand rubles. Damage can be caused to both citizens and any organizations, as well as the state.

As an alternative sign, which may be instead of "causing major damage", "deriving income" in a similar amount is provided.

Example #9. Kolaev G.E. carried out private security activities as an individual entrepreneur in the presence of an expired license. He was prosecuted for committing a crime under Part 1 of Art. 171 of the Criminal Code of the Russian Federation, but he appealed against the guilty verdict due to disagreement with the accusation - he believed that he had not caused harm to anyone. As a result of the appeal hearing of the case, the sentence was upheld, since his income from illegal activities for 2020 amounted to 3,500,000 rubles, that is, exceeded 2,250,000 rubles, and the presence of the “causing major damage” feature is not required here.

It should be noted that when recalculating income, according to the clarifications of the Supreme Court of the Russian Federation, the proceeds received by the entrepreneur without taking into account expenses and expenses, as well as taxes, are taken into account.

According to part 1 of Art. 171 of the Criminal Code of the Russian Federation for illegal entrepreneurship (both without registration and without a license or in violation of the terms of a license) threatens a fine of up to 300,000 rubles or compulsory work up to 480 hours.

If there are additional signs (part 2 of article 171 of the Criminal Code of the Russian Federation), the punishment for illegal business activities can be in the form of:

fine up to 500000 rubles;
imprisonment up to 5 years with a fine of up to 80,000 rubles or without it.

Such additional (qualifying) features may be:

commission of a crime by an organized group - when several criminals have united in order to carry out entrepreneurial activities illegally, while roles are clearly distributed between them, each receives a part of the income, etc.
if the income received as a result of criminal activity is especially large, that is, it exceeds 9 million rubles.

Aggregate with other crimes

Often, along with illegal entrepreneurial activity, there are other offenses in the actions of the perpetrator, for example:

use of someone else's trademark or names, various product designations belonging to another organization - then the actions are additionally qualified under Art. 180 of the Criminal Code of the Russian Federation;
production, storage, transportation or sale of goods without excise marking, if it is mandatory in accordance with the law - there will be an additional qualification under Art. 181 of the Criminal Code of the Russian Federation;
if a product is sold that does not meet the safety requirements of citizens, then additionally the actions of the violator will be qualified under Art. 238 of the Criminal Code of the Russian Federation.

Usually the purpose of illegal business is tax evasion. Meanwhile, if an individual entrepreneur conducts illegal activities, additionally qualify his actions under Art. 198 of the Criminal Code of the Russian Federation (non-payment of taxes) is impossible. During the investigation, all income derived by the guilty will be recognized as material evidence in the framework of a criminal case under Art. 171 of the Criminal Code of the Russian Federation and, in the event of a guilty verdict, everything will be turned into state revenue.

If an entrepreneur has carried out such criminal activities as the sale of weapons, the manufacture of psychotropic substances, etc., then these actions are fully covered by specific articles of the criminal law, without Art. 171 of the Criminal Code of the Russian Federation.

Results

So, you should know about liability for illegal entrepreneurship under Article 171 of the Criminal Code of the Russian Federation:

it occurs as a result of a person carrying out permanent activities aimed at systematically extracting profits without state registration, without a license or in violation of licensing conditions, if such actions caused damage to citizens in the amount of more than 2,250,000 rubles, or income was generated for this amount (if less than 2,250,000 - liability arises according to article 14.1 of the Code of Administrative Offenses of the Russian Federation);
both an entrepreneur and a person who actually conducts such activities, but does not have state registration, as well as a head legal organization whose activity is not registered;
any regulatory authorities, as well as the police and the prosecutor's office, can conduct an inspection and identify violations, where you can write a complaint, if necessary, declare the fact of illegal business;
the maximum punishment provided for by Article 171 of the Criminal Code of the Russian Federation is imprisonment for up to 5 years.