Illegal trading activities. How to prove and where to report illegal business activities? Submission of a complaint to the tax and other authorities, sample application. What is the fine for illegal entrepreneurship to pay according to the Tax Code of the Russian Federation

Many of our readers are entrepreneurs and know that such activities can both enrich and ruin. In civil law, this is how private business is interpreted - an activity based on risk, the purpose of which is to make a profit. There are hundreds of types of entrepreneurship - in the first place, of course, trade, 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.

Entrepreneurship concept

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

All of these features are typical for commercial activities. In addition, there are additional signs that are mentioned in the clarifications of the Supreme Court and the Office of the Tax Service of the Russian Federation: maintaining documentation on completed transactions, as well as on the general work of individual entrepreneurs, the presence of a relationship between transactions and counterparties, etc.

Illegal business

Russian legislation prohibits illegal entrepreneurial activity, for which both administrative (in the form of a fine) and criminal liability are provided. Inconsistency with the law will be 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 pursuing commercial activities to make a profit.

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

Example No. 2... Rakitin P.E. for a long time he was engaged in commercial activities (furniture production and subsequent sale), he registered an individual entrepreneur several years ago. In view of the onset of the economic crisis, P.E. Raktinin decided to terminate the proceedings and filed an application to exclude him from the register of entrepreneurs, which was done. A few months later, P.E. Rakitin decided to resume production, hired workers, adjusted machine tools, 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 bringing Rakitin to responsibility for illegal business.

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

Example No. 3... Konovalov E.N. submitted documents for registration of individual entrepreneurs, among which was a statement indicating the OKVED code for retail trade. Based on the presented by E.N. Konovalov. documents, an entry was made on his registration as an individual entrepreneur in the register. Later it was established that in fact Konovalov E.N. conducted a wholesale trade, while there was no registration of him as an individual entrepreneur. Konovalov's actions were regarded as illegal business.

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

Example No. 4... Nikeshina R.G. acquired a one-room apartment in which she lived. A year later, she got married and moved in with her husband, and began to rent her apartment to replenish the 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. will not report for additional income and will not pay 13% of it, then there may be questions from the tax inspectorate, up to criminal prosecution under Art. 198 of the Criminal Code of the Russian Federation.

No license

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

So, in accordance with the Federal Law ФЗ-99 dated 05/04/2011 "On licensing certain types of 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 entrepreneurial activities in the management of apartment buildings, etc.

The lack of a license in those cases that are reflected in the list of FZ-99 entails liability for illegal entrepreneurial activity for individual entrepreneurs.

Example No. 5... AP Leonova, 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 aim of providing other types of services. During the audit conducted by the 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 the prescribed manner, which was the basis for bringing her to justice.

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

the previously obtained license was canceled;
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 has followed);
if the permit has expired.

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

Example No. 6... Doreen 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 legislation, he did not receive a license for this type, was prosecuted in the form of a fine for illegal entrepreneurial activity.

Administrative responsibility

The decision on bringing to administrative responsibility Article 14.1 of the Code of Administrative Offenses of the Russian Federation is made by the magistrate of the judicial district, on the territory of which the offense was recorded.

How is an offense detected? A representative of the tax inspectorate, the police, the state inspectorate for trade, etc., can visit with a check at the request of citizens or on their own initiative. These officials draw up a protocol, which reflects all the violations that were recorded.

After drawing up the protocol, the person can be brought to administrative responsibility within two months, after which the proceedings on the material are terminated. Under Part 1 of Art. 14.1 Administrative Code of the Russian Federation for illegal entrepreneurial activity without registration is provided fine from 500 to 2000 rubles.

Verification may also consist in conducting a test purchase, the result of which will be a significant, indisputable proof of guilt. Typically, test purchases are used by the police to identify illegal businesses 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 can be in the form of a fine from 2000 to 2500 rubles with or without confiscation of manufactured products.

Example No. 7... The police received a report on the illegal entrepreneurial activity of individual entrepreneur A.A. Rasulov, who was selling food in his own store located in a residential area of \u200b\u200bthe city. A resident of the house, on the first floor of which the store was located, received complaints about Rasulov's lack of 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 the purchased drinks in the courtyards of residential buildings. During the test purchase, the fact of the sale of alcohol in the absence of a license was confirmed, a protocol was drawn up under Part 2 of Art. 14.2 Administrative Code of the Russian Federation. Subsequently Rasulov A.A. a fine of 2,500 rubles was imposed.

Part 3 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation provides for a penalty in the form of a fine up to 2000 rubles for illegal entrepreneurship, when there are violations of the terms of the license. If such violations are recognized as gross, then a 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 established individual criteria according to which a particular violation of the conditions can be attributed to a number of gross ones.

Example No. 8... E.P. Markin registered as an entrepreneur, he was issued a license to carry out transportation by road, equipped to accommodate more than 8 people. E.P. Markin challenged in court his prosecution under Part 4 of Art. 14.1 of the Administrative Code of the Russian Federation, considering that the lack of equipment for checking the technical serviceability of vehicles is not a gross violation, did not agree with the fine imposed on him in the amount of 8,000 rubles. Contrary to the arguments of E.P. Markin, the court found 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 of Transportation, approved by the Government of the Russian Federation, repeated absence of equipment and premises for car repairs within a 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 signs, according to Art. 171 of the Criminal Code of the Russian Federation, is the infliction of large damage - that is, exceeding 2 million 250 thousand rubles. Damage can be caused to both citizens and any organizations, as well as the state.

As an alternative criterion, which may be instead of “causing major damage”, “income generation” is provided in the same amount.

Example No. 9... Kolaev G.E. carried out private security activities as an individual entrepreneur with 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 appealed against the conviction due to disagreement with the prosecution - he believed that he did not harm anyone. As a result of the appeal consideration of the case, the verdict was left unchanged, since his income from illegal activities in 2020 amounted to 3,500,000 rubles, that is, exceeded 2,250,000 rubles, and the presence of the sign of "causing major damage" is not required here.

Note that when recalculating income, according to the explanations of the Supreme Court of the Russian Federation, the proceeds received by the entrepreneur are taken into account without taking into account expenses and costs, as well as taxes.

Under 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 the license) threatens fine up to 300,000 rubles or compulsory work up to 480 hours.

In the presence of additional signs (part 2 of article 171 of the Criminal Code of the Russian Federation), the punishment for illegal entrepreneurial activity can be in the form of:

fine up to 500,000 rubles;
imprisonment up to 5 years with a fine of up to 80,000 rubles or without it.

Such additional (qualifying) features can be:

commission of a crime by an organized group - when several criminals have united for the purpose of carrying 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, exceeds 9 million rubles.

Combination with other crimes

Often, simultaneously with illegal entrepreneurial activity, the actions of the perpetrator include other elements of crime, for example:

use of someone else's trademark or name, 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 additional qualifications 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 in addition the offender's actions 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 (tax evasion) is not allowed. In the course of the investigation, all the income obtained by the guilty person 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 conducted such criminal activities as the sale of weapons, the manufacture of psychotropic substances, etc., then these actions are fully covered by specific articles of criminal law, without Art. 171 of the Criminal Code of the Russian Federation.

Outcome

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

it occurs as a result of a person's ongoing activities aimed at systematic profit-making without state registration, without a license or in violation of licensing conditions, if such actions have caused damage to citizens in the amount of more than 2,250,000 rubles, or an income is obtained for this amount (if less than 2,250,000, liability occurs according to Art.14.1 of the Administrative Code of the Russian Federation);
as an accused, both an entrepreneur and a person who actually conducts such activities, but does not have state registration, as well as the head of a legal organization whose activities are not registered can be involved;
any regulatory authorities, as well as the police and the prosecutor's office, can check and identify violations, where you can write a complaint, if necessary, declare the fact of illegal business;
the maximum punishment provided for in Article 171 of the Criminal Code of the Russian Federation is imprisonment for up to 5 years.

Many Russians receive various kinds of income bypassing the state treasury, that is, without paying taxes and other mandatory payments. Someone sells goods (including via the Internet), others manage to earn money by tutoring or repairing. But not all of them are aware of the risks involved in doing this. Indeed, for business activities that are considered illegal, serious liability is provided. Therefore, it is important to know what exactly refers to such entrepreneurship and what consequences this activity can lead to.

Below will be given a definition of illegal entrepreneurial activity, as well as all the necessary information on the content of different types of liability for it under tax, administrative and criminal law. We will tell you what fines and other penalties face violating entrepreneurs in 2018-2019.

What is illegal business?

First, you need to decide what entrepreneurial activity is in general from the point of view of the domestic legislator. According to the Civil Code, this is an independent activity aimed at obtaining permanent profit from the provision of services, performance of work, sale of goods or use of property, which is carried out at its own risk. This regulatory legal act also stipulates that persons who are engaged in entrepreneurship must be registered in the manner prescribed by law.

Thus, the legislator permits doing business only on condition that the state registration procedure has been passed. If an activity is carried out aimed at obtaining a permanent income, without carrying out the necessary registration actions and obtaining mandatory permits, illegal entrepreneurship occurs.

There can be several forms of its manifestation:

Doing business without state registration as an individual entrepreneur or legal entity.
Entrepreneurship without obtaining a license (if it is required for the activities carried out).
Business activity in violation of the conditions provided for by the license.

The fact that illegal entrepreneurship is being carried out, namely unregistered activity, is evidenced by certain facts:

Services are provided, work or other operations are carried out in order to generate income in the absence of an entry on registration as a private entrepreneur or legal entity in the relevant state registers (USRLE and USRIP).
A person is engaged in commercial activities without waiting for the completion of registration or after its cancellation.
The entrepreneur is engaged in the type of activity that he did not report to the tax authorities during registration or for 2 months after the change of specialization.

Consider the following form of illegal entrepreneurial activity - work without a license in the area where it must be mandatory. According to domestic legislation, admission to about 50 types of entrepreneurship is granted only if a license is obtained. An activity that is subject to licensing without obtaining a permit for it or failure to comply with the terms of its commencement and termination is considered illegal. In other words, if a business in a certain area was launched before the license began to operate, or continued to conduct business after its termination, it is as illegal as working without a license. Business, in the process of which the terms of use of the license are violated, is also contrary to the law.

The following state bodies are empowered to reveal the facts of illegal entrepreneurial activity:

Tax service.
Prosecutor's office and other law enforcement agencies.
Antimonopoly Service.
Licensing authorities.
Rospotrebnadzor.

Penalty for illegal entrepreneurial activity

An individual who violated the law by engaging in illegal business in 2018-2019, as before, runs the risk of material damage. If a violation is revealed, it will be held liable in the form of a fine. Consider the extent and under what conditions such a penalty is applied under tax and administrative legislation.

Tax

Article 116 of the Tax Code provides for penalties for violations related to the registration of business entities with the tax service. Both individuals and companies face a fine if they conduct business without going through the tax registration procedure under this code. For such illegal actions in 2018-2019, you will have to pay 10% of the income received during their commission, but not less than 40 thousand rubles.

And even if an application for registration as a taxpayer is submitted, the entrepreneur will be fined if he turned to the tax authorities at the wrong time. In this case, the fine will be 10 thousand rubles. In addition to fines, the perpetrator will have to pay taxes on the amount of illegally obtained income (VAT, on property, personal income tax, etc.)

Administrative

Under article 14.1 of the Administrative Code, persons guilty of carrying out entrepreneurship without state registration or special permission (license) are brought to justice. For them, depending on the content of the violation, the following penalties are provided:

For individuals doing business without registration as individual entrepreneurs and formations not registered as legal entities - from 500 rubles to 2 thousand.
Business activity without a license (when it is required):
- for individuals - a fine in the amount of 2 to 2.5 thousand rubles;
- legal entities will have to pay 40-50 thousand rubles;
- officials are required to pay 4-5 thousand rubles.

Important: at the same time they can confiscate manufactured products, raw materials and equipment that were used for business.

Business in violation of license terms:
- for individuals - from 1.5 thousand rubles. up to 2 thousand rubles;
- for companies - 30-40 thousand rubles;
- for officials - 3-4 thousand rubles.
Gross violation of license requirements:
- for citizens - 4-8 thousand rubles;
- for companies - 100-200 thousand rubles;
- for officials - 5-10 thousand rubles.

Important: instead of a fine, a penalty such as administrative suspension of activities for a period of up to 90 days can be applied.

Administrative fines for illegal business activities in the near future (already in 2018-2019) may be increased. This will happen if the State Duma adopts the relevant bill under consideration. In this case, you will have to pay 3-5 thousand rubles for doing business without registration, and not from 500 rubles. up to 2 thousand, as for the current Administrative Code. For work without a license, it is proposed to establish the same fine.

Criminal liability for illegal business

When entrepreneurial activity, contrary to the law, becomes serious, that is, the amount of income received turns out to be significant, the punishment becomes more severe. Under certain circumstances, if the committed is recognized as a crime, the perpetrator is prosecuted. The decision on such a case is made by the court at the place of residence of the perpetrator or at the place of business.

Article 171 of the Criminal Code is devoted to illegal entrepreneurship. To fall under its influence, the following must happen:

Business is conducted without registration or with registration, but without a license (if required).

Such actions led to major damage to the state, legal entities or individuals, or a large income was received.

One of the punishments can be applied to the perpetrator of the described crime in 2018-2019:

The fine is up to 300 thousand rubles. or in the amount corresponding to the salary or other income of the offender for a specified period, which cannot exceed 2 years.

Compulsory work - up to 480 hours.

Arrest - up to 6 months.

Responsibility can be even tougher if business in violation of the law is conducted under the following circumstances:

Actions in an organized group.

An especially large income was received.

In this case, the perpetrator will be prosecuted in one of the following ways:

The fine is 100-500 thousand rubles. or an amount corresponding to income for 1-3 years.

Forced labor - up to 5 years.

Deprivation of liberty - up to 5 years. Such a punishment may be accompanied by a fine of up to 80 thousand rubles. or in the amount of income received within a period of up to 6 months.

A separate article 171.3 contains liability for illegal business activities in the sphere of alcohol and alcohol trafficking. If such products are manufactured, purchased, supplied, stored, transported or sold at retail without a license (when it should be) on a large scale, one of the following negative consequences may occur in 2018-2019:

The fine is from 2 to 3 million rubles. or in an amount equivalent to income received over one to three years.

Forced labor - up to 3 years.

Deprivation of liberty - up to 3 years.

In addition to the main punishment, the perpetrator may be deprived of the right to conduct a certain type of activity for a period of up to 3 years. If the same actions are committed with aggravating circumstances, that is, the amount of damage is especially large or an organized group acted, the liability will be even more serious - up to imprisonment for 5 years.

Important: the large amount of damage referred to in article 171 of the Criminal Code is considered to be 1.5 million rubles, and especially large - 6 million rubles. With regard to Article 171.3, here large damage is illegally produced or sold alcohol (alcoholic beverages) in the amount of more than 100 thousand rubles, and an especially large amount - by 1 million rubles.

Summing up

Illegal business activity is the provision of services, performance of work, sale of goods, transfer of property for use and other actions aimed at repeatedly generating income. To acquire the right to conduct such activities, it is necessary to go through state registration, and in some cases also obtain a license. If you do not do this and start running a business, it will be declared illegal.

For the implementation of unregistered activities, liability is provided for in tax, administrative and criminal legislation. Such actions lead to a fine, the amount of which depends on the severity of the offense. It is possible that already in 2018-2019, there will be an increase in administrative responsibility for illegal entrepreneurship, since a corresponding bill is under consideration in the State Duma.

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What is illegal business

Everyone at least once entered into this or that deal, performing a certain job. Often, such transactions are of a personal nature, and therefore are not of interest to the tax authorities. Transactions of a different category are concluded on an ongoing basis, as a result, the person regularly has income. Such transactions are in the area of \u200b\u200binterest of the tax office.

For example, you bought a car, and then decided to profitably resell it to a neighbor and made a profit from the transaction. These actions will not be regarded as entrepreneurial activity, since the transaction was concluded between citizens and is of a single nature. However, if a person regularly resells cars for the purpose of making a profit, then such a person acts as an entrepreneur in civil circulation.

Attention! If the specified person is not registered as an individual entrepreneur, then his activities are outside the scope of the law. As practice shows, some citizens deliberately avoid registration in order not to pay taxes, while others are in good faith mistaken and cannot give a correct assessment of the activities they are engaged in, not considering themselves individual entrepreneurs.

There are various forms of entrepreneurial activity, for example, renovation work, tourism services, wholesale of products, etc.

Often, people who are engaged in entrepreneurial activity consider themselves to be freelancers.

As a rule, these persons receive salaries on an extra-contractual basis or according to a work contract. This means that the tax burden falls on their contractual counterparty.

Therefore, an activity that generates income, but is not permanent, is not entrepreneurial. The specified type of activity does not entail the onset of legal responsibility.

According to the provisions of the second article of the Civil Code of the Russian Federation, entrepreneurial activity is understood as an activity that is carried out independently, is of a risky nature and has the goal of making a profit. Such activity is carried out by a person who is registered in accordance with the requirements of the legislation, in various forms: work or services, sale of property.

What is the difference between freelancing and entrepreneurship? Entrepreneurship is carried out on a regular basis and has the goal of making a profit. If, for example, a person has received income on a large scale as a result of a transaction for the sale of a country house belonging to him, this will not be regarded as a business activity.

Signs of illegal business activity

The following features are distinguished:

systematic profit making, which is the goal of the activity;
the risky nature of the activity and independence in the economic aspect;
use of property, sale of goods and provision of services for profit.

It is required to distinguish between the listed signs and forms of illegal entrepreneurial activity, which are contained in Article 171 of the Criminal Code of the Russian Federation.

The independence of economic activity is understood as the direct participation of a person in civil circulation. The person speaks on his own behalf.

Consequently, economic activity that is not independent in nature cannot be considered entrepreneurial. Such activity qualifies as an employment relationship that arises between an employee and an employer.

Important! As a rule, such activities are formalized in the form of an employment contract. If we compare it with a civil law contract, a number of differences are revealed. The main difference lies in the subject of the contracts.

The subject of the employment contract is the employee's labor activity, and the subject of the civil contract is the result of such activity. After formalizing the employment relationship, the employee is enrolled in the employer's staff, relations of subordination are established between them, disciplinary measures are applied to the employee.

Civil consequences

According to part 4 of article 23 of the Civil Code of the Russian Federation, a person who actually carries out entrepreneurial activity, but is not registered as an individual entrepreneur, is not allowed to refer to the absence of such registration in matters of transactions concluded by him.

This means that in court proceedings the judge has the right to apply to the concluded transactions the norms that regulate entrepreneurial activity: laws No. 135-FZ, No. 184-FZ, No. 315-FZ and No. 294-FZ.

Tax penalties

Please note! If a person is engaged in activities permitted by law without registration, the following circumstances will affect the amount of the fine:

the term for carrying out illegal business activities until the moment of registration;
the amount of profit that the person has received or could have received. The amount is calculated in accordance with the data received and is not tied to the actually received funds. For example, if the documented amount of the transaction is 50,000 rubles, and the person received only 35,000 rubles, then the amount of 50,000 rubles is taken into account.

Consequently, upon revealing the fact of conducting illegal entrepreneurial activity, the person is liable for the fact of concealing information about such activity and for non-payment of the corresponding income taxes.

According to the provisions of the Tax Code of the Russian Federation (Art. 116), if you are registered as an individual entrepreneur thirty or more days after the start of the activity, you are liable to pay a fine. The fine is RUB 10,000. If you have been carrying out illegal activities for three or more months, the fine will be 10% of the estimated income. At the same time, the minimum fine is 40,000 rubles.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issue.

Exemption from liability:

if the age of the person carrying out the specified activity is less than 16 years old;
if the three-year limitation period has expired;
if the reason for not registering is valid (hospital stay, natural disaster, etc.)

Mitigating circumstances (for example, a difficult financial and material situation) will help to reduce the amount of the imposed fine by two or more times. If there are aggravating circumstances (for example, if the offense is of a recurring nature), then the amount of the fine will be doubled or more.

For non-payment of taxes on profits that a person has received in the course of entrepreneurial activity, the following fines will have to be paid (Article 122 of the Tax Code of the Russian Federation):

20% of the tax amount;
40% of the tax amount if there is evidence of intentional concealment of income.

In this case, income tax is payable, which was received during the conduct of the specified activity.

Watch the video. Illegal business activity:

Administrative responsibility

Remember! For carrying out illegal business activities, a person is also subject to administrative responsibility in the form of a fine in accordance with the provisions of the Code of Administrative Offenses of the Russian Federation. Fines are imposed in the absence of registration and the absence of an appropriate license.

General provisions and amounts of possible fines

At present, the amount of an administrative fine for carrying out entrepreneurial activity in the absence of registration is from 500 to 2000 rubles (Article 14.1 of the Administrative Code). The size of the fine is influenced by the scale of the activity and other circumstances.

If a person violated the licensing norms and did not receive the necessary license, he is obliged to pay the following fines (clause 2 of article 14.1 of the Administrative Code):

2000-500000 rubles. for individual entrepreneurs;
4000-5000 rub. for an official;
RUB 40,000-500,000 for a legal entity. In this case, property confiscation is applied.

If the licensing requirements are violated, the following fines are additionally imposed (clause 3 of article 14.1 of the Administrative Code):

RUB 1500-2000 for individuals. In the presence of gross violations: 4000-8000 rubles;
3000-4000 rub. for officials. In the presence of gross violations: 5000-10000 rubles;
RUB 30,000-40,000 for organizations. In the presence of gross violations: RUB 100,000-200,000. At the same time, the activities of the organization are suspended.

Attention! Fines for illegal business in certain categories:

for illegal trade in medicinal products (Art. 6.28 of the Administrative Code of the Russian Federation): 1500-3000 rubles. for individuals, 5000-10.000 rubles. for officials and 20,000-30,000 rubles. for organizations;
for illegal gambling outside gambling zones (Art. 14.1.1 of the Administrative Code and Art. 171.2 of the Criminal Code of the Russian Federation): 700,000-1,000,000 rubles. Confiscation of equipment and imprisonment for up to six years are also used;
for the sale of things that are withdrawn from civilian circulation or are limited in it (weapons, potent poisons, etc.) (Article 14.2 of the Administrative Code): 1500-2000 rubles. for individuals, 3000-4000 rubles for officials, 30,000-40,000 rubles for legal entities. In this case, the property is confiscated;
fine for illegal entrepreneurial activity in the transport industry (Article 14.1.2 of the Administrative Code): 5000 rubles. for citizens, 100,000 rubles. for individual entrepreneurs;
for organizing illegal games in special gambling zones, the amount of the fine is as follows (clause 4 of article 14.1.1 of the Administrative Code): 2000-4000 rubles. for citizens, 30,000-50,000 rubles. for officials, RUB 500,000-1,000,000 for legal entities.

A separate type of offense is illegal trade in tickets for the 2018 World Cup matches.

If a person resold tickets for profit in the absence of mandatory documents, then he is obliged to pay a fine (Article 14.15.2 of the Administrative Code), the amount of which is equal to 25 times the cost of a ticket for individuals, 30 times the cost of a ticket for officials and 500,000- RUB 1,000,000 for organizations. For the sale of counterfeit tickets in the absence of corpus delicti, individuals are required to pay a fine in the amount of 50,000 to 70,000 rubles, officials - from 150,000 to 200,000 rubles, and legal entities - from 1,000,000 to 1,500,000 rubles.

Tax and other regulatory authorities quite often hold certain persons accountable for illegal business. Many convictions for this crime are handed down every day. However, even the courts often have questions related to his legal qualifications. Let's try to understand the most important of them.

First of all, let us turn to the definition of entrepreneurial activity. According to civil law, such is "an independent activity carried out at its own risk, aimed at systematic 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 of article 2 of the Civil Code RF).

Based on the general rule "Participants of relations regulated by civil legislation (including business ones. - Auth.) Are citizens and legal entities" (clause 1 of Art. 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. We will not consider the possible participation of public legal entities (for example, the Russian Federation, constituent entities of the Russian Federation and municipalities) in this material.

Citizens and legal entities. Legal capacity

Unlike legal entities, the multitude of citizens is heterogeneous. It consists of citizens with:

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

According to the Civil Code of the Russian Federation, "a citizen has the right to engage in entrepreneurial activity without forming a legal entity:" (Clause 1, Article 23 of the Civil Code of the Russian Federation). It is subject to the rules "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 of the Civil Code of the Russian Federation).

The Code distinguishes several categories of such citizens and on this basis links the moment of their acquisition of special legal personality with the onset of various events:

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

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

The legislator connects the emergence of citizens and legal entities of special legal personality with obtaining a special permit (license). According to civil law, "the right: to carry out activities for which it is necessary to obtain a license, arises from the moment of obtaining such a license or within the period specified in it and terminates upon the expiration of its validity, 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-commercial organizations. The criterion for such a classification is the purpose of the activity. Commercial organizations are subjects of entrepreneurial activity. The main goal of their work is to make a profit. At the same time, non-profit organizations are not subjects of entrepreneurial activity, since making a profit is not their main goal (clause 1 of article 50 of the Civil Code of the Russian Federation). Next, we will talk about how this circumstance manifests its positive and negative significance for the criminal law qualification of illegal entrepreneurship.

Objective and subjective sides of the crime

Let's 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 registration rules, as well as submission to the body carrying out state registration of legal entities and individual entrepreneurs, documents containing deliberately false information, or carrying out entrepreneurial activities without special permission (license) in cases when such a permit (license) is mandatory, or in violation of licensing requirements and conditions, if this act caused large damage to citizens, organizations or the state or is associated with the extraction of income on a large scale "(Part 1 of Art. 171 of the Criminal Code of the Russian Federation) ...

It is preferable to begin to characterize this composition from the objective point of view. First of all, illegal business 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 object, that is, the action itself (entrepreneurial activity). The danger arises as a result of the criminally directed intent of the subject to commit actions that are outwardly absolutely legal, but entail illegal receipt of income.

Therefore, the Plenum of the RF Armed Forces 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 analogs), his deeds do not require additional qualifications under Article 171 of the Criminal Code of the Russian Federation "(clause 18 of the Resolution of the Plenum of the RF Armed Forces of November 18, 2004 N 23, hereinafter - Resolution N 23).

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

Subjects of the crime

Having described illegal business 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, in order to qualify an act as illegal business, the legislator has established two types of vice of the subject:

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

The flaw 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, "the implementation of entrepreneurial activities without registration will take place only in cases where there is no entry in the Unified State Register for Legal Entities and the Unified State Register for Individual Entrepreneurs about the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or there is a record of liquidation a legal entity or the termination of the activity of an individual as an individual entrepreneur "(clause 3 of Resolution No. 23). Under the implementation of entrepreneurial activity in violation of the registration rules, it should be understood "the conduct of such an activity by an entrepreneurial subject who was knowingly aware that during registration there were violations that give grounds for invalidating the registration (for example, documents were not submitted in full, as well as data or other information required for registration, or it was made in spite of the existing prohibitions "(paragraph 3 of Resolution No. 23).

The Civil Code of the Russian Federation twice allows the opportunity to legally conduct business without registration, both for citizens and for legal entities. So, in the cases provided for in paragraph 4 of Art. 23 of the Code, "a citizen carrying out entrepreneurial activity without forming a legal entity in violation of the requirements: (on registration. - Auth.) Does not have the right to refer to the transactions concluded by him 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 norm of Art. 198 of the Criminal Code of the Russian Federation (it deals with tax evasion from individuals) is formulated on the basis of the same principle, that is, the subsequent legitimation of illegal actions and the application of a special regime of legal regulation to the legal relations that have arisen.

Fixing in par. 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 was established until the moment of its state registration and making an entry in the Unified State Register of Legal Entities. This is the term of registration of legal entities. This exception cannot be neglected. Illegal business must be truly illegal. In addition, exceptions are special rules - both in relation to the norms on state registration of legal entities and IPBOYUL, and in relation to the norms of criminal law (for example, in relation to the norm contained in Art. 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 that do not distribute profits between the participants, but in the course of their activities they extract it with enviable consistency. Both the Criminal Code of the Russian Federation and the Plenum of the Armed Forces of the Russian Federation are silent on this issue. Emphasis with reference to paragraph 1 of Art. 2 of the Civil Code of the Russian Federation for the systematic receipt of profit from activities (paragraph 1 of Resolution No. 23) does not solve this problem. It remains unclear at what point "systematicity" begins, given that entrepreneurial activity is of a continuing nature.

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

The interpretation by the Plenum of the Armed Forces of the Russian Federation of the legal qualification of the activities of a legal entity possessing special legal capacity and, therefore, incapable of conducting other activities, except for the one for which it was created, as activities without registration or as activities without a license (clause 6 of Resolution No. 23). Here the Plenum contradicts itself: clause 6 of Resolution No. 23 contradicts clause 3 of the same resolution, expanding the content of the concepts "activity without registration" and "activity without a license". It seems that in this case the Plenum of the RF Armed Forces should have used the right to interpret the norms of law and give a broad interpretation not to these concepts, but to the concept of "illegal business". The activity of an already established subject of law and entrepreneurial activity outside the limits of exclusive competence can in no way be recognized as activity without registration.

Responsibility: criminal, tax, administrative

If a person conducts business without registration (Article 171 of the Criminal Code of the Russian Federation), the state is unable to establish for certain the amount of his income - the taxable base and calculate the amount of taxes or fees. The registration is carried out by the Federal Tax Service of the Russian Federation (Article 2 of the Federal Law of 08.08.2001 N 129-FZ). The Tax Code of the Russian Federation provides for administrative liability for violation of the deadline for registration with the tax authority (Art. 116 of the Tax Code of the Russian Federation) and evasion from it (Art. 117 of the Tax Code of the Russian Federation). Article 14.1 of the Code of Administrative Offenses of the Russian Federation, establishing administrative responsibility for conducting business without state registration or special permission (license), duplicates the provisions of the Tax Code of the Russian Federation (in particular, clause 1 of Article 117 of the Tax Code of the Russian Federation).

It should be borne in mind that the Code on Administrative Offenses of the Russian Federation deals with administrative responsibility for carrying out entrepreneurial activities without state registration. The Tax Code of the Russian Federation provides for the onset of administrative responsibility at a later stage, that is, when a person is registered as an organization or an individual entrepreneur, but at the same time evades registration with the tax authority as a subject of taxation (taxpayer). This circumstance stipulates 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 (Art. 171 of the Criminal Code of the Russian Federation) is of a material nature (the material composition of the offense is a crime). A prerequisite for its application is 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 damage. A formal violation of a legal prescription is enough (clause 13 of the resolution of the Plenum of the RF Armed Forces of October 24, 2006 N 18).

Unfortunately, the Presidium of the RF Armed Forces ignores a problem that is very important for the practical activities of both law enforcement and judicial authorities: the delimitation of 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 which norm of which branch of law is to be applied to resolve a specific incident is always relevant and insoluble. Therefore, each time it is solved differently. And the scanty amount of damage set as the lower limit for the application of the norm of criminal law, on the one hand, makes it nominal, and on the other hand, it gives a wide scope for abuse, creating a situation in which one person is involved in administrative proceedings for the same actions. , 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 penalty in the form of a conditional measure. By the way, a third party can get off with a slight fright in general, having received a court decision on the recovery of some amount from him.

In the topic of "illegal business" there is one more issue that needs to be disclosed. Namely - about qualifications under Art. 171 and 199 (198) of the Criminal Code of the Russian Federation. On the one hand, illegal entrepreneurship (Art. 171 of the Criminal Code of the Russian Federation) is a general rule in relation to tax evasion from an organization (Art. 199 of the Criminal Code of the Russian Federation) or from an individual (Art. 198 of the Criminal Code of the Russian Federation). Therefore, when establishing the fact of tax and (or) tax evasion, the actions of the person must be qualified under Art. 198 or Art. 199 of the Code in order to avoid the appointment of 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 business". This does not allow to define 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 the legal relationship is the fiscal authorities, and in the case of illegal entrepreneurship - the management bodies of special competence, not related to fiscal, as well as a fiscal body in the implementation of state registration and maintenance of a unified state register. Consequently, if there are signs of corpus delicti, provided for in Art. 171 and 198 (199) of the Criminal Code of the Russian Federation, they should be classified in aggregate. This is confirmed by paragraph 2 of Resolution No. 23, in which the Plenum of the RF Armed Forces specifies how to qualify the actions of an individual who has acquired property and rents it out without paying taxes.

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

Many people have a question: "What is illegal business... How to qualify it, by what criteria? What is the responsibility for entrepreneurship without registration? "

Any of us at least once had to conclude deals, do some work. Often they are of a personal, private nature, are occasional and of no interest to the authorities. But other deals, contracts are concluded constantly and bring regular income... These are the transactions that can arouse the tax authorities' curiosity.

For example, if you bought a piece of land, and then, after a while, sold it and at the same time made a profit, then this is not illegal business, because the deal was single, concluded between individuals and therefore does not fall under the category of entrepreneurial activity.

But if a person regularly buys land plots (as well as equipment, cars, etc.) for the purpose of resale and profit, then such a person is an entrepreneur. Moreover, if he is not registered in the manner prescribed by law, has not received a license (if required), then the entrepreneur is illegal.

Some "entrepreneurs" deliberately evade tax evasion, while others do not even realize that their activities fall under the definition of entrepreneurship, which means that a person should. Business activities can be different: renting out premises, training, mass and soot, equipment repair, providing various kinds of consultations, sewing clothes, developing souvenirs, design services, creating websites, etc.

Often people who are engaged in entrepreneurial activities consider themselves so-called freelancers. Usually, they are paid for the work performed either "in the dark", without any contracts, or according to work contracts, i.e. taxes, as, are paid for by the company for which they wrote an advertising article, made a translation or provided any other one-time service. Therefore, if a person's activities are episodic and income is very modest, such work is your own business.

Note: The sale of personal belongings, the execution of small works and orders from time to time does not bear any administrative or criminal liability. Also, this does not apply to a one-time rental of your apartment.

The difference between entrepreneurial activity and freelancing is that it is built on a permanent professional basis and its main goal is to make a profit. If you have made a large profit from the sale of your own property, this is not considered a business. In other cases, when there is independence, carrying out work on an ongoing basis in order to generate income, but there is no registration, you can make trouble.

How the tax office looks for illegal, unregistered individual entrepreneurs

Please note that the facts that can prove your involvement in business activities are:

Exhibiting examples and samples of products.
Purchase of goods in bulk, that is, not in a single quantity.
Concluding lease agreements for non-residential premises.
Testimonials from people who purchased products from you
Receipts for receiving funds.
Advertise your products.
Your bank account statements.

The letters of the Ministry of Finance indicate signs that characterize entrepreneurial activity:

Accounting for transactions related to transactions.
Communication of all completed transactions for a specific time.
Constant communication with contractors.
Acquisition of property, which will subsequently be used to make a profit.

PENALTIES for illegal entrepreneurship want to increase

It is proposed to increase illegal business fineby setting its size from 3 to 5 thousand rubles.

SIGNS of illegal business activity

independence of economic activity and its implementation at your own risk;
systematic profit as the goal of the activity;
the use of property, the sale of goods, the performance of work or the provision of services as sources of profit.

At the same time, the signs of entrepreneurial activity must be distinguished from the forms of illegal entrepreneurial activity enshrined in the disposition of Article 171 of the Criminal Code of the Russian Federation.

Independence of economic activity presupposes, first of all, that an individual or legal entity - an entrepreneur participates in civil circulation directly, on his own behalf, by his own will and in his own interest.

Therefore, economic activity devoid of independence cannot be considered as entrepreneurial. This is already employment relationship between employee and employer... And such activities are most often legally formalized by an employment contract, even if not properly executed. An employment contract is different from ( characteristic of entrepreneurship) your subject.

The subject of an employment contract is "the worker's living labor itself." Accordingly, in labor relations, the employee falls under the authority of the employer, disciplinary relations arise, the employee's work is organized by the employer, who appropriates income and bears the commercial risk of losses from entrepreneurial activity.

THREE FORMS of illegal business:

without state registration,
without a license,
in violation of licensing.

Even if you legally registered as an individual entrepreneur, but did not receive a license for the activity that requires, you also work illegally, i.e. you are an illegal entrepreneur. Moreover, it must be remembered that each type of activity may require a separate license, and if you do not have one, you are engaged in illegal business activities. This is also worth considering.

Note: For example, after opening a treatment center, you should not sell drugs until you receive a separate document.

Criminal, administrative or tax liability

It occurs when the entrepreneur's actions have caused serious damage to citizens, organizations or the state, or large-scale income has been generated (i.e., over 1 million 500 thousand rubles).

In other cases, the perpetrators bear administrative responsibility in the form of fines. As a punishment, Art. 171 of the Criminal Code of the Russian Federation provides for a fine (in the amount of up to 300 thousand rubles or in the amount of the convict's salary or other income for a period of up to two years), compulsory work up to 480 hours) or arrest for up to six months.

For example, you decided to make a lot of money by reselling some expensive product (car, plot, building materials, etc.). In one case, such a transaction may be excluded from the definition of entrepreneurial activity due to its singularity, in the other, due to the receipt of a rather large income, it may be classified as illegal entrepreneurship.

Tax liability for illegal business

In the Tax Code of the Russian Federation, responsibility for activities without registration is provided for in two articles at once.

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