What is the punishment for illegal business activity. What is the penalty for illegal business in the Russian Federation: in detail. Criminal Code of the Russian Federation

The Government estimates that about 20 million able-bodied Russians do not declare their sources of income. About half of them run their own, often small, illegal businesses. What is the penalty for illegal entrepreneurial activity in 2019?

What is entrepreneurial activity

But first, what is entrepreneurial activity in general? How does it differ from employment? And why is illegal business prosecuted?

The concept of entrepreneurship is established by Article 2 of the Civil Code. This is an independent, risky activity aimed at systematic profit. At the same time, the entrepreneur receives income not from the performance of labor duties, but from the sale of goods, the performance of work, the provision of services, the use of property.
If we compare an entrepreneur with an employee, a number of differences can be identified.

Entrepreneur	Salaried worker
It independently establishes relations with the consumer, performing the entire cycle from finding an order for a product or service to receiving payment for it.	Works under the supervision of the employer, often performing only one function in the customer service cycle. Receives payment from the employer.
Risks not to receive payment for his goods and services, but if successful, he disposes of the income from the business at his own discretion.	Protected by labor law, receives a salary, regardless of personal results. In this case, the employer pays the employee only a part of the profit earned by him.
It independently provides its own pension and health insurance, pays taxes on income received from business.	The employer pays for the employee's pension, social and health insurance, he also withholds and transfers personal income tax from his salary.

If a business is conducted without registration, then the state receives nothing from such a commercial entity. But at the same time, an illegal entrepreneur enjoys all the rights of a citizen, plus he can count on free medical care and a social pension. And this happens at the expense of law-abiding business and its employees, who just pay taxes and fees.

The state is trying to return the shadow business to the legal field in various ways, including by establishing administrative, tax and criminal sanctions.

Administrative sanctions

The current norms of Article 14.1 of the Administrative Offenses Code of the Russian Federation establish a fine for illegal entrepreneurial activity in 2019 in the amount of 500 to 2,000 rubles. If a citizen is illegally engaged in activities requiring a license (which is issued only to registered subjects), then the fine is slightly higher - from 2,000 to 2,500 rubles.

In addition, a registered organization or individual entrepreneur obtains the status of a commercial entity and is required to comply with numerous legal provisions. This is, at a minimum, timely submission of reports, payment of taxes and contributions, fulfillment of employer's duties, use of a cash register.

At the same time, fines are imposed on legal merchants for violating the laws governing business conduct, and often these are very significant amounts. For example, a legal entity may be fined up to 1 million rubles for placing advertisements without the consent of the local administration.

Thus, if we talk about administrative responsibility for illegal entrepreneurship, then the currently applied sanctions do not have any incentive function. Moreover, this situation provokes to go into the shadows even law-abiding citizens who cannot withstand competition with illegal business.

Tax penalties

Tax legislation does not establish liability for illegal entrepreneurship, but imposes penalties for non-payment of tax or non-registration.

If it is proved that income has been received from an illegal business, from which no tax has been paid, then a fine will be charged under Article 122 of the Tax Code of the Russian Federation. This is 20% of the tax amount, and for willful evasion of payment - 40%. The tax itself and penalties will also have to be paid.
If an entrepreneur conducts real activity for more than 30 days without registering and registering with the Federal Tax Service Inspectorate, then this faces a fine of 10,000 rubles under article 116 of the Tax Code of the Russian Federation.

Criminal liability

A fine for illegal business activity in 2019 may also be imposed within the framework of criminal prosecution. The amounts are significant - up to 300 thousand rubles or the income of the convict for a period of up to two years.

However, it is possible to prosecute if the proven income from the illegal business was received on a large scale, which is more than 2.25 million rubles. Everything below falls under administrative jurisdiction, i.e. under fines from 500 to 2500 rubles.

If the criminal income is received by an organized group, or its amount is recognized as particularly large (more than 9 million rubles), then the fine rises to 500 thousand rubles or up to three years' income of the convict. Criminal liability for illegal entrepreneurship also provides for real terms of restriction of freedom - from six months to five years.

Illegal business activity (punishment for an individual)

Why register a business

As can be seen from the size of the sanctions, and judging by the number of illegal businessmen, the established liability for illegal entrepreneurial activity does not fulfill its motivating function.

However, every year it is more and more difficult to conduct business without registration, and the reason is not at all in state control. The choice in favor of registered business entities is made by consumers themselves.

If a product or service is obtained from an illegal businessman, then the consumer is not protected by anything. He cannot receive a document confirming payment, apply for warranty repair, replace defective goods, demand high-quality performance of work or services.

If we talk about the b2b segment, then it is more difficult for an entrepreneur without registration to find a business partner. The efforts of the tax authorities to control the execution of business transactions are bearing fruit. In order not to be accused of tax evasion, counterparties conduct a thorough analysis of the future partner before concluding transactions. And the first point of this analysis is the presence of registration in the state register of individual entrepreneurs or legal entities.

A new form of entrepreneurial activity

Usually speaking about business registration, they mean an individual entrepreneur or LLC. But while these organizational and legal forms are very popular, they have many drawbacks. This is a rather high tax burden, and the complexity of management, and the need to constantly submit difficult reports, and the use of a cash register, etc.

For several years now, the state has been trying to create a new form of entrepreneurial activity - self-employed persons. In fact, this category includes all small sellers and performers with a small income and do not attract workers to their business.

Of course, they could register as an individual entrepreneur, but they are stopped by the following nuances:

the irregular nature of the business;
the need to pay insurance premiums (in 2019 it is at least 36,238 rubles), even if the activity does not bring any profit;
the obligation to use a cash register, the purchase and annual maintenance of which exceeds 25 thousand rubles;
complex reporting, for the completion of which you have to pay an accountant.

A mechanism was needed that would allow these persons to work legally, but simplify the accounting of their income and the payment of taxes.

However, the first experiment aimed at pulling illegal entrepreneurs out of the shadows failed. A very narrow circle of performers was classified as self-employed: tutors, domestic staff, nannies and nurses. Moreover, they do not pay taxes and fees for two years, but simply register with the IFTS.

The unregulated status of self-employed, as well as the need for subsequent registration as an individual entrepreneur, did not bring results. A little over 1000 people were registered in this capacity throughout Russia, which is incomparable with the millions of illegal entrepreneurs.

But at the end of June 2018, the Federal Tax Service came up with a completely new initiative that can really fundamentally resolve the situation. It is proposed to classify individuals as self-employed who independently sell goods and provide services in various areas of business.

Moreover, the tax rate depends on the consumer of the product or service. If this is an ordinary individual, then the self-employed will pay only 3% tax on the income received. If the buyer or customer is a legal entity, then the tax rate will be 6%.

And most importantly, the tax payment system has been simplified as much as possible. Payment confirmation for the buyer is issued through the mobile application, i.e. without a cash register. Self-employed will register in their personal account on the FTS website, which reflects the income they receive. Tax must be paid for each such operation. If there is no income, then you will not have to pay tax or contributions.

Implementation of this option in practice will allow most small business entities to be brought out of the shadows, and they will no longer have to apply fines and other sanctions.

Any state traditionally strictly regulates the conditions in which its citizens and foreigners can engage in entrepreneurial activity, so if you plan to open your own business, you must know the relevant legislative norms. Illegal business activity can entail liability commensurate with the scale of the business and the damage that the state has received from the actions of the entrepreneur.

The concept of entrepreneurial activity carried out outside the law

To be illegal, an activity must first be entrepreneurial, that is, meet several basic requirements:

be carried out independently and at your own risk. The driver or any other employee who works for an unlawful entrepreneur is not subject to any liability. Although in practice, courts often take the opposite position;
aim to systematically generate income. A single transaction of purchase and sale or the provision of any service for payment is not an entrepreneurial activity;
a source of income for an entrepreneur is the use of property, the provision of services or the sale of goods.

That is why a grandmother who comes to the metro every Monday to sell vegetables from her garden will be an entrepreneur, but there will not be a person who has sold not even one, but several properties belonging to him. If the latter is not a systematic activity of buying and selling, but simply a series of transactions, the seller is not responsible.

According to the law, any person who systematically receives income from any activity can be considered an entrepreneur and be held liable, including those who traditionally do not consider themselves entrepreneurs: freelancers, farmers selling their products, people of creative professions.

Only landlords who rent out their unused real estate are exempted from responsibility for carrying out entrepreneurial activities without registration, although in this case they are not exempt from the obligation to pay personal income tax (this exception is spelled out in the Resolution of the Plenum of the RF Armed Forces dated November 18, 2004 No. 23 ). All landlords are exempt from liability, regardless of the method of acquisition, the number of real estate objects and the amount of income received.

Whether a citizen's activity is entrepreneurial is determined in each case individually. The plenum of the RF Armed Forces pointed out several times that only systematic activity can be called entrepreneurial, which can be judged by the range of goods sold, its origin, the frequency with which a person is engaged in trade or rendering services, and other features (Resolution of the Plenum of the RF Armed Forces of 24.10. 2006 No. 18).

Also, the Civil Code classifies state registration of a legal entity or registration of a citizen as an individual entrepreneur among the criteria defining an activity as entrepreneurial.

But in reality, trade without registration does not cease to be entrepreneurial activity. Failure to comply with the requirements of the law will only entail liability, but will not relieve the entrepreneur of the obligation to meet the obligations that he assumed by doing business illegally. Therefore, in addition to claims from regulatory authorities, an entrepreneur can receive a subpoena and civil claims from counterparties if his activities have caused them damage.

Illegal business activity: liability and possible fines

There can be several violations of the law when doing business:

lack of registration. Moreover, the moment of state registration is the moment of making an entry about a legal entity or individual entrepreneur (individual entrepreneur), therefore, it is impossible to do business until the end of the registration procedure;
activities without a license when necessary (for example, illegal trade in alcohol);
activity in violation of licensing conditions (only administrative responsibility).

What type of responsibility a person will be held liable depends on the amount of income received. It should also be borne in mind that if you are interested in law enforcement agencies, in addition to responsibility directly for trade or the provision of services without registration, you may face punishment under other related articles of the Administrative Code or even the Criminal Code of the Russian Federation (for example, when combining illegal trade with trade in unmarked goods).

Criminal liability under Art. 171 of the Criminal Code of the Russian Federation

This is the most serious of the possible consequences of violating the laws on registration of legal entities and individual entrepreneurs and licensing rules. A criminal record closes many doors for a person, including access to credit resources in the same volume.

According to Art. 171 of the Criminal Code of the Russian Federation, it can be qualified to conduct a business without registration or without obtaining a license (when this is a mandatory legal requirement), if this activity has caused major damage to the state or third parties or allowed to receive income on a large or especially large scale (this is 250 thousand and 1 million rubles respectively).

A fine for illegal entrepreneurial activity is up to 500 thousand rubles or in the amount of a convict's income for a maximum of three years, forced labor for up to 5 years, arrest for up to 6 months, or even imprisonment for up to 5 years. It is rather difficult to prove illegal business activity with the receipt of such income, therefore the article is rarely applied. But if law enforcement officers set themselves such a goal, with an appropriate scale of business, the application of Art. 171 of the Criminal Code of the Russian Federation is a very real prospect.

After the fact of carrying out entrepreneurial activities in violation of the law has been recorded, law enforcement agencies must prove two facts:

that the person was engaged in entrepreneurial activity;
the fact that the person received income exceeding 250 thousand rubles or caused damage by his actions in an amount higher than the specified one.

Most often, a test purchase is made to prove that a person is actually trading or providing services. Bank statements, primary accounting documents, testimonies of counterparties and other witnesses, an estimate of the value of the goods seized from the entrepreneur can serve as evidence of income generation.

If the entrepreneur managed to be prosecuted, the court in most cases is limited to a fine, but it should always be borne in mind that there is also the possibility of applying the highest penalty for this article - imprisonment. To do this, you just need to receive income on an especially large scale or commit a crime by an organized group of persons (for example, together with your accountant).

If law enforcement officers managed to prove the fact of illegal entrepreneurial activity, but failed to prove the receipt of income on a large or especially large scale, the crime will be reclassified as an administrative offense.

Administrative responsibility

This type of liability is used more often as it does not require proven income. Most often, street vendors or others who trade without registration are prosecuted. An administrative fine for trading without registration of an individual entrepreneur under Art. 14.1 Administrative Code of the Russian Federation:

from 500 to 2 thousand rubles for entrepreneurial activity without registration (for example, a fine for illegal trade on the street);
for entrepreneurial activity without a license - from 2 to 50 thousand rubles with confiscation of all products and raw materials (for example, a fine for illegal trade in alcohol). The amount of the fine depends on who committed the offense, the mildest punishment is for an individual, the most severe is for a legal entity;
for entrepreneurial activity in violation of the terms of the license - from 1.5 to 40 thousand rubles;
for gross violation of the terms of the license - from 4 to 50 thousand rubles with the possibility of suspending the activities of a legal entity for up to 90 days.

An offense is proved in the same way as a crime under Art. 171 of the Criminal Code of the Russian Federation: a test purchase is made, proving the fact of conducting activities or conducting them in violation of the terms of the license. The rest of the evidence is collected as needed.

Tax liability

The main reason why there is liability under the above articles is that a person who is not properly registered does not pay taxes to the budget. Therefore, upon discovering a violation, the tax service will try to compensate for this damage. Therefore, an individual or legal entity expects a fine for illegal trade in the amount of 10 thousand rubles plus 10% of the income received from illegal activities (Article 116 of the Tax Code of the Russian Federation).

In addition, the tax office will charge all taxes due for the period of work without a license.

When bringing to tax liability, it should be remembered that the FTS must prove your guilt in court in order to achieve repayment of the debt to the budget of the Russian Federation, therefore, with competent legal support, the amount of claims can be reduced.

How to avoid liability for trading without registration?

It's not about how to run a business without registration and sleep well. In this case, there is no solution: sooner or later, the regulatory authorities will become aware of your activities during a routine inspection, from competitors or a dissatisfied client. Therefore, for doing business, it is better to choose the least expensive form of legal entity in servicing or register as an individual entrepreneur.

But you should always remember that in order to bring you to justice, the regulatory authorities must comply with all formal requirements. One of the ways to evade responsibility is to challenge the drawn up protocol on an administrative offense. If the judge sees significant errors in it, the protocol will be sent for revision. Correction of errors and re-examination take time, and two months after drawing up the protocol, it is no longer possible to bring the person to justice.

But often, when selling several real estate objects or concluding other large transactions by an individual, the tax office has many claims and the seller is called to explain the fact of receiving income. In this case, you should not be afraid if you really do not conduct business (even if there was an underestimation of the cost):

come to a “conversation” with a lawyer;
insist that there is no regularity in your activity of selling or buying something; you are not going to do business in this area. No one can prove the opposite;
refer to the owner's right to dispose of his property in any way.

Even if you sold real estate to a family member at a lower cost to minimize taxes or simplify inheritance, the state authorities will not be able to present any reasonable claims to you, so you can go to the tax office with a clear conscience. Even if you have made several transactions (more than two per year, making it possible to talk about systematicity), it will be almost impossible to prove the receipt of income.

But if you are afraid of criminal prosecution (and if a case has already been opened, you should always be afraid of it), it is better to hire an experienced lawyer as soon as possible, he will help assess the risks in a particular situation and correctly form and defend your position.

Illegal business activities, especially when they bring significant profits, will very quickly interest the tax and law enforcement agencies. In most cases, the risk is not worth the potential income, so it is better to arrange your activities in accordance with the requirements of the law. But if you find yourself in a situation that threatens to be brought to administrative or criminal liability, it is important to seek legal assistance as soon as possible - it can be quite difficult to independently formulate your position and defend it in court.

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 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 under the legislation of the Russian Federation.

Entrepreneurship concept

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

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

Illegal business

Russian legislation prohibits conducting illegal business activities, 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 inspection, up to criminal prosecution under Art. 198 of the Criminal Code of the Russian Federation.

No license

In some cases, provided 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 04.05.2011 "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 carried out 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 you also need to have a special permit, such entrepreneurship will also be considered not in compliance 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, he 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 message about the illegal entrepreneurial activity of individual entrepreneur A.A. Rasulova, 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 cars 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 clarifications of the Supreme Court of the Russian Federation, the proceeds received by the entrepreneur are taken into account, excluding expenses and expenses, 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 license terms) 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 corpus delicti, 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 case 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 legislation, 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.

Hello! Today we will talk about illegal entrepreneurship.

You will find out what kind of business activity can be called illegal, and what kind of liability for illegal business is provided for by Russian law.

What is entrepreneurial activity

Before talking about legality, one should understand the very concept of entrepreneurial activity.

According to the law, this is an activity that:

It is conducted independently and on its own initiative by an individual or legal entity, which also independently bears all possible risks;
It is aimed at systematic (not one-time) making a profit: once for money, to cut a friend's bangs is not yet entrepreneurship, but in order to open your own mini-salon and regularly make money on hairdressing services, you will need to register with the tax office
Uses property for commercial purposes (for example, renting a car), sells goods (trade) or services (repairs, cosmetic services, and so on).

The systematic sale of goods at a value equal to or less than that at which it was purchased cannot be considered an enterprise, since there is no profit.

Types of illegal business

Illegal business activity - business that does not meet legal requirements.

What law does a business have to violate to become illegal? In fact, any answer is correct. There are many types of illegal business, but let's focus on the most common ones.

Situation 1. Carrying out entrepreneurial activity without proper registration

Simply put, doing business without or. The date of the entry in the appropriate state register is considered the moment of registration.

It will be considered a violation not only to conduct business without filing an application with the registration authority, but also to start such activity before receiving a positive response. State registration can only be confirmed by a certificate of the established form; before it is received, it is illegal to conduct business activities.

Situation 2. Inconsistency of the type of activity with the declared one during registration

For example, an entrepreneur registered as an individual entrepreneur planning to open a car service, but at the construction stage he decided to change direction to a roadside cafe, which he did not report to the registering authority. Since the entrepreneur was not issued a permit to work in the catering sector, such activities will be considered illegal.

Situation 3. Lack of required permits (licenses)

For example, the sale of clandestine alcohol or other unlicensed products. A complete list of activities subject to compulsory licensing is specified in Article 17 of Federal Law No. 128.

The entrepreneur has not applied to the appropriate authority for a permit when it is required by law;
An application for a license has been submitted, but a positive response has not yet been received, and activities are already underway;
Commercial activity continues after the suspension or revocation of the license, the expiration of its term.

Situation 4. Violation of licensing terms

Violation of the conditions applicable to the product (the date of manufacture is not indicated);
Violation of technical requirements for licensed activities (sanitary and hygienic conditions in food production);
Activities outside the territory specified in the license.

Complaints about illegal business activities

The Russian government is seriously concerned about the scale of illegal entrepreneurship in the country. When one person in a million without state registration systematically sells potatoes and does not pay taxes, the country's budget will not notice this, but when such violations are massive, the tax system sounds the alarm.

The desire of entrepreneurs not to pay taxes on their not without that meager income is understandable, but everything has a limit. Perhaps no one will complain about a neighbor who illegally bakes custom-made cakes once a month, but you can already file a complaint with a full-fledged hairdressing salon, open without registration and license in an ordinary apartment.

You can file a complaint at:

Department of Economic Security;
Prosecutor's Office (considers all complaints and redirects them to other authorities);
FTS (complaints about entrepreneurs who hide significant profits);
Police (handle complaints about street vendors and illegal alcohol producers);
Licensing authorities (complaints regarding the lack of a license or violation of its terms).

The application must indicate:

Information about the intruder;
Subject of violation;
Direction of illegal activity;
A package of proof documents (receipt of payment, contract for the provision of services).

Responsibility for illegal business

Cases of illegal commercial activity can be identified and recorded:

Law enforcement officers, prosecutors;
Inspectors of Rospotrebnadzor or the Antimonopoly Service;
Employees of the tax and other inspection bodies.

The most common reason for the visit of inspectors is complaints from citizens and reports of illegal business. The result of the check is a protocol containing all the charges.

Depending on the scale of the violation, liability for illegal business can also vary in severity.

For example, along with the ones listed below, there may also be violations of the Labor Code, the requirements of the fire inspection, the antimonopoly service and many others. Will have to answer for violations of all legal norms.

Criminal liability (CC)

The worst thing for an offender is criminal liability for illegal entrepreneurial activity is provided for by Article 171 of the Criminal Code of the Russian Federation. They are involved in it only for violations that entailed large (more than 1.5 million rubles) damage to citizens or other organizations.

Responsibility under Article 171 of the Criminal Code of the Russian Federation is difficult to prove, so it is rarely used.

Depending on the damage caused, this article provides for the following penalties:

Measure	Lack of state registration or required license	Conducting illegal business by an organized group or causing damage over 6 million rubles.
Fine in rubles	Up to 300,000	100,000 to 500,000
Penalty in the income of the convicted person for the period	Up to 2 years	One to three years
Forced labor	Up to 480 hours	Up to five years
Arrest	Up to six months	Up to five years, sometimes an additional fine of about 80,000 rubles is imposed

Persons over 16 years of age can be prosecuted:

CEOs, founders of the company;
Actual business owners without state registration.

Criminal liability is mitigated by the absence of a criminal record of the accused.

Regardless of the amount of damage, citizens working with an unregistered entrepreneur and owners of rented real estate cannot be held criminally liable.

Administrative responsibility

According to the Administrative Code of the Russian Federation, liability arises if the violation did not entail damage to third parties in excess of 1.5 million rubles.

Unregistered entrepreneurial activity can result in an administrative fine of 500-2000 rubles.

For violation of the licensing system, equipment and manufactured products can be confiscated, as well as the following fines are possible:

Violation	For citizens		For officials	For legal entities
No compulsory licenses		2000-2500 rubles	4000-5000 rubles	40,000-50,000 rubles
Failure to comply with licensing terms		1500-2500 rubles	3000-4000 rubles	40,000-50,000 rubles
Gross violation of licensing conditions (in addition to the fine, the activities of an enterprise may be suspended for up to three months)		4000-5000 rubles	4000-5000 rubles	40,000-50,000 rubles

Sometimes administrative punishment can be avoided. For example, when the inspection protocol was drawn up incorrectly or if there are contradictions in it. The protocol with inaccuracies must be reissued, and if this procedure takes more than two months, the judge is obliged to close the case. The decision on bringing to administrative responsibility is made by the magistrate.

Tax code

The tax service is especially interested in identifying illegal entrepreneurship, since the state does not receive a share of taxes due to unregistered activities.

An article of the Tax Code that punishes illegal entrepreneurship most often becomes article 116.

According to her:

For violation of the deadline for filing an application for registration of entrepreneurial activity - a fine of 10,000 rubles.
Doing business without registration, that is, if an application for registration has not been submitted at the time of the claim - a fine of 10% of the income received for the entire period of work, but not less than 40,000 rubles. In practice, the amount of such a fine is rarely objective, since it is very difficult to reliably establish the date of the start of unregistered entrepreneurial activity and the amount of income received.

In addition to fines for illegal business activities, the tax authorities may require the entrepreneur to pay all taxes and penalties for their delay.

Tax sanctions are imposed only by a court decision.

Civil liability

After the commercial activity is declared illegal, all agreements concluded within its framework are terminated, and the entrepreneur has civil legal obligations to customers. For example, return paid funds and pay a forfeit. Dissatisfied customers can request a refund within three years.

Failure to fulfill the obligation of civil liability can also be presented in court.

Appeal

To charge an entrepreneur with illegal activity, the supervisory authority will have to collect a lot of evidence. All revealed facts are recorded in the act, on the basis of which the protocol is formed.

You need to appeal the protocol before presenting it in court, since after that it will be almost impossible to prove your innocence.

Only the protocol can be appealed, but not the act - it only confirms the fact of verification. But it is necessary to refer to the appeal against the lack of proof of the circumstances in the act.

Based on the results of the appeal against the protocol, the court can cancel it and remove the charges from the defendant, or it can leave it in force and continue the consideration of the case.

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