Illegal trading activity. How to prove and where to report illegal entrepreneurial activity? Filing a complaint with the tax and other authorities, a sample application. What fine for illegal entrepreneurship will have to be paid according to the Tax Code of the Russian Federation

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 signs that are mentioned in the clarifications. Supreme Court and the Department of the Tax Service of the Russian Federation: maintaining documentation on completed transactions, as well as on common work IP, the presence of a relationship between operations and counterparties, etc.

Illegal business

Russian legislation prohibits conducting illegal entrepreneurial activity For this, 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. has been engaged in commercial activities for a long time (furniture production and subsequent sale), he registered an IP several years ago. In view of the coming 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 a certain thing, object, real estate for personal use, and subsequently entered into a lease agreement (even for long term), because 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. not accountable for additional income and does not pay 13% of it, then there may be questions from tax office, up to bringing to criminal liability under Art. 198 of the Criminal Code of the Russian Federation.

Without a license

In certain cases provided for by law, for lawful activities individual entrepreneur registration alone is not enough, you need to get a license.

Thus, 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., having a higher pedagogical education in the region foreign languages, opened an educational center at her place of residence, while she was registered as an individual entrepreneur with the purpose of activity - "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 in accordance with the established procedure for educational activities 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 has a license for a certain type of activity and at the same time is engaged in another type, for which a special permit is also required, 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 began to work also pharmaceutical activities, however, in violation of the requirements of federal law, licenses for this species did not receive, was prosecuted 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 draw up a protocol, which reflects all the violations that have been 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 field of sales alcoholic products. 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 entrepreneurial activities of IP Rasulov A.A., who traded in products in his 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 to carry out transportation by road, 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 as justified 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 left unchanged, 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 fine 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:

the 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 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 goal 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 the implementation by a person of constant activity aimed at the systematic extraction of profit without state registration, without a license or in violation of the terms of licensing, if such actions caused damage to citizens in the amount of more than 2,250,000 rubles, or earned income for this amount (if less than 2,250,000, liability arises under 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 the head of a legal organization whose activities are not registered, can be involved as an accused;
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.

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

The definition of illegal business activity will be given below, as well as all the necessary information about the content different types responsibility for it under tax, administrative and criminal legislation. We will tell you what fines and other penalties threaten 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 a constant profit from the provision of services, work, sale of goods or use of property, which is carried out at your own risk. This regulatory legal act also states that persons who are engaged in entrepreneurship must be registered in the manner prescribed by law.

Thus, the legislator allows business only on condition that the state registration procedure has been completed. If activities are carried out aimed at obtaining 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 such activities are required for the types of activities carried out).
Entrepreneurial activity in violation of the conditions stipulated by the license.

The fact that illegal business is 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 (EGRLE and EGRIP).
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 within 2 months after changing 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, access to approximately 50 types of entrepreneurship is granted only if a license is obtained. Both activities subject to licensing, without obtaining a permit for it, and non-observance of the terms of its beginning and termination are considered illegal. In other words, if a business in a certain area was launched before the license began to operate, or continued to be economic activity after its termination, it is just as illegal as working without a license. Contrary to the law and entrepreneurship, in the process of which the conditions for using the license are violated.

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

Tax service.
Prosecutor's office and other law enforcement agencies.
Antitrust Service.
Authorities issuing licenses.
Rospotrebnadzor.

Penalty for illegal business activity

An individual who has violated the law by engaging in illegal business in 2018-2019, as before, risks suffering materially. If a violation is detected, it will be prosecuted in the form of a fine. Consider the extent and under what conditions such punishment is applied under tax and administrative legislation.

Tax

Article 116 of the Tax Code provides for penalties for violations related to the registration of economic 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 Code of Administrative Offenses, persons guilty of doing business without state registration or a special permit (license) are held liable. For them, depending on the content of the violation, the following penalties are provided:

For individuals doing business without registration as individual entrepreneurs and entities not registered as legal entities - from 500 rubles to 2 thousand.
Entrepreneurial activity without a license(when 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 contribute 4-5 thousand rubles.

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

Entrepreneurship in violation of the terms of the license:
- 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 an 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 corresponding draft law, which is 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 per the Code of Administrative Offenses currently in force. For work without a license, it is proposed to establish the same penalty.

Criminal liability for illegal business

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

Article 171 of the Criminal Code is devoted to illegal entrepreneurship. To be eligible, the following must happen:

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

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

One of the following penalties may be applied to the perpetrator of the described crime in 2018-2019:

Fine - up to 300 thousand rubles. or in an amount corresponding to the salary or other income of the violator for a certain period, which cannot exceed 2 years.

Mandatory work - up to 480 hours.

Arrest - up to 6 months.

Liability can be even tougher if illegal business is conducted under the following circumstances:

Activities in an organized group.

Received a particularly large income.

In this case, the perpetrator will be held accountable for one of the following types:

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

Forced labor - up to 5 years.

Imprisonment - 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 during a period of up to 6 months.

In a separate article 171.3, responsibility for illegal entrepreneurial activity in the field of alcohol and alcohol circulation is derived. If such products are produced, 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:

Fine - from 2 to 3 million rubles. or in an amount equivalent to the income received for one to three years.

Forced labor - up to 3 years.

Imprisonment - up to 3 years.

In addition to the main punishment, the perpetrator may be deprived of the right to conduct activities of a certain type 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: a 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. As for Article 171.3, here large damage is illegally produced or sold alcohol (alcoholic beverages) in the amount of more than 100 thousand rubles, and especially large damage - 1 million rubles.

Summing up

Illegal entrepreneurial activity is the provision of services, the performance of work, the sale of goods, the 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 undergo state registration, and in some cases also obtain a license. If you do not do this and start doing 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 a tightening of 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 concluded this or that transaction, performing a certain job. Often such transactions are of a personal nature, and therefore are not of interest to the tax authorities. Transactions of another category are concluded on an ongoing basis, as a result, a person regularly has income. Such transactions are within the scope of the interests of the tax inspectorate.

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 is concluded between citizens and is of a single nature. However, if a person regularly resells cars in order to make 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 law. As practice shows, some citizens deliberately avoid registration in order not to pay taxes, while others are honestly 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, repair work, provision of tourist services, wholesale trade products, etc.

Often people who are engaged in entrepreneurial activities consider themselves freelancers.

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

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

According to the provisions of article two of the Civil Code Russian Federation Entrepreneurial activity is understood as an activity that is carried out independently, is risky in nature and aims to make a profit. Such activity is carried out by a person who is registered in accordance with the requirements of the law, in various forms: works or services, sale of property.

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

Signs of illegal business activity

The following signs are distinguished:

the systematic extraction of profit, which is the purpose of the activity;
risky nature of activities 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 acts on his own behalf.

Consequently, economic activity, which 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, registration of such activity is carried out in the form employment contract. If we compare it with a civil law contract, a number of differences are revealed. The main difference lies in the subject matter of the contracts.

Subject of the employment contract labor activity employee, and the subject of a civil law contract is the result of such activity. After registration of labor relations, the employee is enrolled in the employer's staff, relations of subordination are established between them, and measures of disciplinary liability apply to the employee.

Civil legal consequences

According to Part 4 of Article 23 of the Civil Code of the Russian Federation, a person who actually carries out entrepreneurial activities, 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 during the judicial review of the case, the judge has the right to apply to concluded transactions the rules 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 the implementation of illegal entrepreneurial activity until the moment of registration;
the amount of profit that the person has received or could receive. The amount is calculated in accordance with the data received and is not tied to the actual received money. 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, when the fact of conducting illegal business activities is revealed, the person is held liable for the fact of concealing information about such activities and for non-payment of the relevant income taxes.

According to the provisions of the Tax Code of the Russian Federation (Article 116), if you registered as an individual entrepreneur thirty or more days after the start of your activity, you are liable to pay a fine. The amount of the fine is 10,000 rubles. If you have been illegally active for three or more months, the fine will be 10% of the estimated income. In this case, the minimum fine is 40,000 rubles.

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

Indemnification cases:

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

Extenuating circumstances (for example, difficult financial and financial situation) will help reduce the amount of the imposed fine by two or more times. If there are aggravating circumstances (for example, if the offense is repetitive), then the amount of the fine will be increased by two or more times.

For non-payment of taxes on profits that a person received in the course of entrepreneurial activities, 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 deliberate concealment of income.

In this case, tax is payable on the profit that was received during the conduct of this activity.

Watch the video. Illegal business activity:

Administrative responsibility

Remember! For the implementation of illegal business activities, administrative liability in the form of a fine is also applied to a person in accordance with the provisions of the Code of Administrative Offenses of the Russian Federation. Penalties are imposed in the absence of registration and the absence of an appropriate license.

General provisions and amounts of possible fines

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

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

2000-500000 rub. for individual entrepreneurs;
4000-5000 rub. for an official;
40000-500000 rub. for a legal entity. This applies to confiscation of property.

If the licensing requirements are violated, fines of the following size are additionally imposed (Clause 3, Article 14.1 of the Code of Administrative Offenses):

1500-2000 rub. 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;
30000-40000 rub. for organizations. In the presence of gross violations: 100,000-200,000 rubles. At the same time, the activities of the organization are suspended.

Attention! Penalties for illegal business in certain categories:

for illegal trade in medicines (Article 6.28 of the Code of Administrative Offenses of the Russian Federation): 1500-3000 rubles. for individuals, 5000-10.000 rubles. for officials and 20,000-30,000 rubles. for organizations;
for conducting illegal gambling outside gambling zones (Article 14.1.1 of the Code of Administrative Offenses and Article 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 applicable;
for the sale of things that are withdrawn from civil circulation or limited in it (weapons, potent poisons, etc.) (Article 14.2 of the Code of Administrative Offenses): 1500-2000 rubles. for individuals, 3000-4000 rubles for officials, 30000-40000 rubles for legal entities. In this case, the property will be confiscated;
fine for conducting illegal business activities in the transport industry (Article 14.1.2 of the Code of Administrative Offenses): 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, article 14.1.1 of the Code of Administrative Offenses): 2000-4000 rubles. for citizens, 30,000-50,000 rubles. for officials, 500,000-1,000,000 rubles. for legal entities.

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

If a person resold tickets for profit in the absence of required documents, then he is obliged to pay a fine (Article 14.15.2 of the Code of Administrative Offenses), 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- 1000000 rub. for organizations. For the sale of fake 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 bring certain persons to responsibility for illegal business. Every day there are many convictions for this crime. However, even the courts often have questions related to its legal qualification. Let's try to understand the most important of them.

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

Based general rule“Participants in relations regulated by civil law (including entrepreneurial ones. - Ed.) Are citizens and legal entities” (clause 1, article 2 of the Civil Code of the Russian Federation), they are the subjects of the offense under Art. 171 of the Criminal Code of the Russian Federation. Possible participation of public legal entities (for example, the Russian Federation, constituent entities of the Russian Federation and municipalities) will not be considered in this paper.

Citizens and legal entities. Legal capacity

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

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

According to the Civil Code of the Russian Federation, "a citizen has the right to engage in entrepreneurial activities 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, connects the moment they acquire special legal personality with the onset of various events:

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

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

The legislator associates the emergence of special legal personality among citizens and legal entities with obtaining a special permit (license). According to civil law, “the right to carry out activities for which a license is required arises from the moment such a license is received or within the period specified in it and terminates upon the expiration of its validity period, unless otherwise provided by law or other legal acts” (paragraph 3 article 49 of the Civil Code of the Russian Federation).

Note that legal entities are also heterogeneous, and according to Art. 50 of the Civil Code of the Russian Federation, they are divided into two large groups: commercial and non-profit organizations. The criterion for such a classification is the purpose of the activity. Commercial organizations are business entities. The main purpose of their work is to make a profit. At the same time, non-profit organizations are not business entities, since making a profit is not their main goal (clause 1, article 50 of the Civil Code of the Russian Federation). Next, we will talk about how this circumstance shows its positive and negative significance for the criminal-legal 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), the offense he committed does not require additional qualification under article 171 of the Criminal Code of the Russian Federation "(clause 18 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated 11/18/2004 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 legitimation 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 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 doing business 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 ( material composition offenses are crimes). Necessary condition for its application is the infliction of damage of a certain amount or the illegal extraction of income in 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 Armed Forces of the Russian Federation ignores a very important problem 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 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

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

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

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

But if a person is regularly engaged in the purchase of land (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 must. Entrepreneurial activity can be different: renting out premises, training, mass and soot, repairing equipment, providing various kinds of consultations, tailoring, 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 done either "in a black way", without any contracts, or under work contracts, i.e. taxes, as they 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 activity is episodic and the income is very modest, such work is your own business.

Note: The sale of personal belongings, the performance of minor work and assignments from time to time does not entail either administrative or criminal liability. This also does not apply to a one-time rental of your apartment.

The difference between entrepreneurial activity and freelancing lies in the fact 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 own property, it is not considered entrepreneurship. In other cases, when there is independence, the implementation of work on an ongoing basis in order to generate income, and there is no registration, you can make trouble.

How the tax authorities look for illegal, unregistered individual entrepreneurs

Keep in mind that the facts that can prove your involvement in entrepreneurial activities are:

Exhibiting examples and samples of products.
Purchase of goods in bulk, that is, not in a single quantity.
Conclusion of lease agreements for non-residential premises.
Testimony of people who have purchased products from you
Receipts for receiving funds.
Advertising your products.
Statements from your bank account.

The letters of the Ministry of Finance indicate the signs characterizing entrepreneurial activity:

Accounting for transactions related to the implementation of transactions.
Communication of all completed transactions for a certain time.
Constant communication with contractors.
Acquisition of property, which will later be used for profit.

Penalties for illegal business want to increase

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

SIGNS OF ILLEGAL BUSINESS ACTIVITIES

independence of economic activity and its implementation at one's own risk;
systematic profit as the goal of activity;
use of property, sale of goods, performance of work or 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.

Autonomy of economic activity presupposes, first of all, that the physical or 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. It's already labor relations between employee and employer. And such activities are most often legally formalized by an employment contract, even if not properly executed. The employment contract is different from ( characteristic of entrepreneurship) with its subject.

The subject of the employment contract is "the living labor of the worker itself". Accordingly, in labor relations the employee becomes subordinate to the employer, disciplinary relations arise, the work of the employee 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 the license.

Even if you legally registered as an individual entrepreneur, but did not receive a license for the activity that requires, you are also working illegally, i.e. you are an illegal business. 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, having opened a treatment center, you should not sell medicines until you receive a separate document.

Criminal, administrative or tax LIABILITY

It occurs if the actions of the entrepreneur caused serious damage to citizens, organizations or the state, or a large amount of income was generated (i.e. over 1 million 500 thousand rubles).

In other cases, the perpetrators are 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 wages or other income of the convicted person for a period of up to two years), compulsory work up to 480 hours) or arrest for up to six months.

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

Tax liability for illegal business

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

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