Legal liability for illegal business. Illegal business. Illegal entrepreneurship of the Criminal Code of the Russian Federation

Tax and other regulatory authorities quite often hold certain individuals accountable for illegal business. There are still many convictions for this crime. However, even the courts often have questions related to its legal qualifications. Let's try to understand the most important of them.

First of all, let's look at the definition entrepreneurial activity. According to civil law, this is “independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or 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 legislation (including business ones - Author) are citizens and legal entities” (Clause 1, Article 2 of the Civil Code of the Russian Federation), they are the subjects of the crime provided for in Art. 171 of the Criminal Code of the Russian Federation. Possible participation of public legal entities (for example, Russian Federation, subjects of the Russian Federation and municipalities) we will not consider in this material.

Citizens and legal entities. Legal capacity

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

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

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

The Code identifies several categories of such citizens and on this basis connects the moment of their acquisition of special legal personality with the occurrence of various events:

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

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

The legislator associates the emergence of special legal personality among citizens and legal entities with the receipt of a special permit (license). According to civil law, “the right: to carry out activities for which it is necessary to obtain a license arises from the moment of receipt of such a license or within the period specified therein and terminates upon expiration of its validity period, unless otherwise established by law or other legal acts"(Clause 3, Article 49 of the Civil Code of the Russian Federation).

Note that legal entities are also heterogeneous, and according to Art. 50 of the Civil Code of the Russian Federation they are divided into two large groups: commercial and non-profit organizations. The criterion for such classification is the purpose of the activity. Commercial organizations are subjects of entrepreneurial activity. The main goal of their work is to make a profit. At the same time, non-profit organizations are not subjects of entrepreneurial activity, since making a profit is not their main goal (Clause 1, Article 50 of the Civil Code of the Russian Federation). Next, we will talk about how this circumstance manifests its positive and negative significance for the criminal legal classification of illegal entrepreneurship.

Objective and subjective aspects of the crime

Let us turn to the definition of illegal entrepreneurship, which is given in Art. 171 of the Criminal Code of the Russian Federation. It is understood as “carrying out business activities without registration or in violation of registration rules, as well as submitting documents containing knowingly false information to the body that carries out state registration of legal entities and individual entrepreneurs, or carrying out business activities without a special permit (license) in cases where such a permit (license) is mandatory, or in violation of licensing requirements and conditions, if this act caused major 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 begin 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 a 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 that are outwardly absolutely legal, but entail illegal receipt of income.

Therefore, the Plenum of the Armed Forces of the Russian Federation indicated that “in those cases when a person, with the goal of generating income, is engaged in illegal activities, liability for which is provided for in other articles of the Criminal Code of the Russian Federation (for example, the illegal manufacture of firearms, ammunition, sale narcotic drugs, psychotropic substances and their analogues), what he did does not require additional qualification under Article 171 of the Criminal Code of the Russian Federation" (clause 18 of Resolution of the Plenum of the Armed Forces of the Russian Federation of November 18, 2004 N 23, hereinafter referred to as 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 more precisely, to the problem of establishing their circle. As noted above, the legislator, in order to qualify an act as illegal business, established two types of vice of the subject:

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

A defect in registration may be expressed in various forms. This could be either a lack of registration or a violation of its rules.

At the same time, “carrying out business activities without registration will take place only in cases where the Unified state register for legal entities and the Unified State Register for individual entrepreneurs there is no record of the creation of such a legal entity or acquisition an individual status of an individual entrepreneur or contains a record of the liquidation of a legal entity or termination of the activities of an individual as an individual entrepreneur" (clause 3 of Resolution No. 23). Carrying out business activities in violation of registration rules should be understood as "conducting such activities by a business entity that was knowingly it is known that during the registration there were violations that give grounds for declaring the registration invalid (for example, documents, as well as data or other information necessary for registration were not submitted in full, or it was carried out contrary to existing prohibitions" (clause 3 of the resolution N 23).

The Civil Code of the Russian Federation twice allows for the possibility of legally conducting business without registration, both for citizens and for legal entities. So, in the cases provided for in paragraph 4 of Art. 23 of the Code, “a citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements: (registration - author) does not have the right to refer in relation to transactions concluded by him to the fact that he was not an entrepreneur. The court may apply to such transactions rules: (Civil Code of the Russian Federation - Author) on obligations related to the implementation of entrepreneurial activities."

It should be noted that the norm of Art. 198 of the Criminal Code of the Russian Federation (in it we're talking about on tax evasion from individuals) is formulated based on the same principle, that is, the subsequent legitimation of unlawful actions and the application of a special regime to the resulting legal relations legal regulation.

By fixing it in para. 1 clause 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 allowed the possibility of the existence of a “backlash”. From the moment of creation of the company to the moment of its state registration and making an entry in the Unified State Register of Legal Entities, at least five days must pass. This is the deadline for registering legal entities. This exception cannot be ignored. Illegal business must be truly illegal. In addition, exceptions are special norms - both in relation to the norms on state registration of legal entities and IPBOYUL, and in relation to the norms of criminal law (for example, in relation to the norm contained in Article 171 of the Criminal Code of the Russian Federation).

There is one more nuance: the commercial activities of companies that own property under the right of economic management and operational management, and non-profit organizations, which do not distribute profits between participants, but in the course of their activities extract them with enviable consistency. Both the Criminal Code of the Russian Federation and the Plenum of the Armed Forces of the Russian Federation are silent on this issue. Emphasis with reference to paragraph 1 of Art. 2 of the Civil Code of the Russian Federation on the systematic receipt of profit from activities (clause 1 of Resolution No. 23) does not solve this problem. It remains unclear at what point “systematicity” begins, given that entrepreneurial activity is of an ongoing 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 period has expired, and the person continues to carry out a licensed type of activity and after some time receives a new license or extends the validity of the previous one, may there be a need for additional qualification of such an act under Art. 159 of the Criminal Code of the Russian Federation "Fraud".

The interpretation by the Plenum of the Armed Forces of the Russian Federation of the legal qualification of the activities of a legal entity that has special legal capacity and is therefore unable to conduct other activities other than the one for which it was created, as activities without registration or as activities without a license, looks very original (clause 6 of Resolution No. 23). Here the Plenum contradicts itself: clause 6 of Resolution No. 23 contradicts clause 3 of the same resolution, expanding the content of the concepts of “activity without registration” and “activity without a license”. It seems that in this case the Plenum of the RF Armed Forces 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 activities outside the limits of exclusive competence cannot in any way be recognized as activities without registration.

Responsibility: criminal, tax, administrative

If a person conducts business activities without registration (Article 171 of the Criminal Code of the Russian Federation), the state does not have the opportunity to reliably establish the amount of his income - the tax base and calculate the amount of taxes or fees. Registration is carried out by the Federal tax service RF (Article 2 Federal Law dated 08.08.2001 N 129-FZ). The Tax Code of the Russian Federation provides for administrative liability for violation of the deadline for registration with tax authority(Article 116 of the Tax Code of the Russian Federation) and evasion thereof (Article 117 of the Tax Code of the Russian Federation). Article 14.1 of the Code of Administrative Offenses of the Russian Federation, establishing administrative responsibility for conducting business activities without state registration or special permission (license), duplicates the provisions of the Tax Code of the Russian Federation (in particular, paragraph 1 of Article 117 of the Tax Code of the Russian Federation).

It should be borne in mind that the Code of Administrative Offenses of the Russian Federation deals with administrative responsibility for carrying out business 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 liability if a person commits one or another of the above offenses.

When limiting the scope of the norms of administrative and criminal law, it is necessary to keep in mind that the criminal law norm (Article 171 of the Criminal Code of the Russian Federation) is of a material nature (the material elements of the offense are crimes). A necessary condition for its application is to cause damage of a certain size or illegally extract income in a certain amount. The administrative legal norm is of a formal nature (formal elements of the offense) and therefore does not require establishing the fact of causing damage. Only a formal violation of a legal requirement is sufficient (clause 13 of the resolution of the Plenum of the RF Armed Forces of October 24, 2006 N 18).

Unfortunately, the Presidium of the RF Armed Forces ignores a very important practical activities both law enforcement and judicial authorities have a problem: delimiting the scope of the norms of administrative, criminal and civil law in the implementation of mixed legal regulation of the same legal relations. As a result, the question of which branch of law to apply to resolve a particular case is always relevant and insoluble. Therefore, each time it is solved differently. And the tiny amount of damage established as the lowest limit for the application 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 one person is brought to administrative charges for the same actions , and the other - to criminal liability. Moreover, for damage caused in the amount of 250,000 rubles and 1 kopeck, this person does not always receive a suspended sentence. By the way, a third party can generally get off with a slight fright if he receives judgment about collecting some amount from him.

There remains one more issue on the topic of “illegal entrepreneurship” that needs to be addressed. Namely - about 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 norm 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 evasion of taxes 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 these compositions to be defined as general and special in relation to each other, that is, the volume of one composition does not overlap with the volume of the other. In addition, the subject composition of legal relations in these cases differs significantly: in cases of evasion of taxes 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 the fiscal, as well as fiscal authority when carrying out state registration and maintaining a unified state register. Consequently, if there are signs of a crime under Art. in a person’s actions. 171 and 198 (199) of the Criminal Code of the Russian Federation, they should be qualified in their entirety. This is confirmed by paragraph 2 of Resolution No. 23, in which the Plenum of the RF Armed Forces indicates how to qualify the actions of an individual who has acquired property and leases it out without paying taxes.

E.V. Semyanov,
MGKA, candidate of law. sciences

From time to time, many of us sell something, provide paid services, or make things for a fee for friends and acquaintances. Such transactions, which are one-time in nature, are the personal matter of one or more private individuals. However, if such actions are carried out regularly and begin to acquire a commercial scale, liability for illegal entrepreneurship may arise.

For example, having started by selling clothes that your child has outgrown, you go further and, having ordered children's clothes from China, sell them through a group in in social networks... Once you successfully helped a colleague make repairs for a small fee and decided to make extra money from it by placing an ad in the newspaper? Do you get massages or nail extensions at home? Repairing household appliances or are you a private driver? If your activity is purposefully conducted to generate income and is put on stream, you must understand that in this case you are an unregistered entrepreneur.

Of course, if your “job” brings in modest, irregular income, it is unlikely that anyone will accuse you of illegal business activities. If your business has clearly gone beyond a small “part-time job” and has begun to generate significant profits, not only the tax inspectorate, but also the police and other official bodies may well be interested in your income.

In addition, the law prohibits certain types of work without special permission (for example, medical and cosmetology services, design work, freight and passenger transportation, and so on). Conducting such a business without obtaining a license and other permitting documents is an even more serious offense than unregistered business.

Entrepreneurship and Law

In accordance with Civil Code independent activity, which is carried out at one’s own risk for the systematic receipt of profit, is called entrepreneurial. Profit can be made from providing paid services, carrying out work on a paid basis, selling goods or using property. Leading commercial activities a citizen is required to officially register as an entrepreneur.

Thus, the main distinguishing feature of entrepreneurship from ordinary private transaction is a combination of systematic activity and making profit from it.

For example, a one-time provision of a service for a fee or a one-time transaction for the purchase and sale of goods is not yet entrepreneurship. The same actions, but performed two or more times in a year, will be considered systematic. But if the goods are sold for the same or less value for which they were purchased, there is no fact of making a profit, and the sale is considered private, regardless of the number of such transactions. Under other conditions, the activity will already be commercial.

Let's consider cases in which doing business does not comply with legal standards.

In Russian law, illegal entrepreneurship means:

1. unregistered commercial activity (without registration of an individual entrepreneur or legal entity); or executed with violations or with the provision of false information in registration documents;
2. business without mandatory licensing individual species activities;
3. conducting business in violation (including gross violation) of licensing requirements.

According to the law, illegal business entails three types of liability: administrative, criminal and tax.

Learn more about these types of liability.

Illegal entrepreneurship in administrative law

The Code of Administrative Offenses provides for penalties for carrying out illegal commercial activities.

1) A fine of 500 to 2000 rubles is imposed on a citizen who has not registered his activities as an individual entrepreneur or legal entity.

2) Carrying out licensed types of activities without obtaining the appropriate permit entails:

• for individuals - a fine of 2,000 to 2,500 rubles with the possibility of confiscation of means of production and products;
• For officials— a fine of 4,000 to 5,000 rubles with possible confiscation;
• for legal entities - a fine of 40,000 - 50,000 rubles with or without confiscation.

3) Violation of the requirements and conditions of the license is punishable by an administrative fine:

• for citizens - 1500 - 2500 rubles;
• for officials - 3000 - 4000 rubles;
• for organizations - 30,000 - 40,000 rubles.

4) Gross violation of licensing conditions is punishable by suspension of illegal business for up to 90 days or a fine:

• individuals - 4000 - 5000 rubles;
• officials - 4000 - 5000 rubles;
• legal entities - 40,000 - 50,000 rubles.

Establishing the fact of illegal business is entrusted to the police, tax inspectorate, antimonopoly committee, supervisory authorities consumer market, prosecutor's office. They draw up a protocol on the offense during verification activities: conducting a test purchase, inspecting the premises and other necessary actions. The reason for the inspection may be a complaint from a dissatisfied client or any signal received indicating that a citizen is illegally engaged in business without registration or is committing irregularities in work.

Cases of bringing illegal entrepreneurs to administrative responsibility are dealt with by the magistrate at the place of activity of the individual or at his place of residence. The case of an administrative offense must be considered within two months after drawing up the protocol. Otherwise, the judge is obliged to make a decision to terminate the proceedings. An incorrectly drawn up protocol, the presence of inaccuracies or contradictions in it, often allows the violator to avoid punishment. While the protocol is being reissued by the body that compiled it, the period allotted by law for bringing a citizen to administrative responsibility may expire.

Criminal liability for illegal business

In some cases, criminal liability is provided for illegal business activities. It occurs if an illegal businessman, through his activities, has caused major damage to the state, organizations or individuals, and has also generated large-scale income. In this case, large size means an amount of 250,000 rubles, especially large – over 1 million rubles.

The Criminal Code provides for the following penalties for illegal business.

1) For causing damage on a large scale:

• a fine of up to 300,000 rubles or in the amount of two years’ earnings of the violator;
• from 180 to 240 hours of compulsory work;
• imprisonment for 4-6 months.

2) For damage caused on an especially large scale or an act committed by a group of persons:

• a fine in the amount of 100,000 – 500,000 rubles or equal to three years’ income of the perpetrator;
• imprisonment for up to 5 years with a fine of up to 80,000 rubles or in the amount of six months’ income of the convicted person.

The burden of proving the facts of generating large profits or causing damage to third parties falls on the police or prosecutor's office. It is almost impossible to detect an offense that falls under the criminal code in its gravity, since control purchases by inspection bodies are carried out for limited amounts. Therefore, as a rule, they are not able to prove the receipt of significant income from the business. Most often, individuals are subject to criminal prosecution in cases of involvement in laundering proceeds from crime.

Responsibility for illegal activities carried out commercial organization, is assigned to its leader.

The following are not subject to criminal liability:

• citizens performing their duties employment contract concluded with an illegal entrepreneur;
• owners of rental properties, regardless of the amount of income received.

Circumstances mitigating criminal punishment are the single fact of bringing a citizen to justice and the existing positive characteristics the culprit.

Illegal business activity may be associated with other criminal offenses in the field of business:

• unlawful use of someone else's trademarks, deliberately false indication of the place of origin of the goods;
• production, purchase and circulation of counterfeit products, excise goods, goods marked with special signs protected from counterfeiting.

In this case, liability measures are provided for the totality of these crimes.

Illegal business and tax authorities

Articles 116 and 117 Tax Code determine sanctions following commercial activities without registration, in the form of collection of taxes not received by the state and fines for evasion of their payment.

1. Unregistered in tax office an entrepreneur is punished with a fine of 10% of the income he receives, at least 20,000 rubles. The penalty is applied if, at the time of the tax audit, the application for registration of an entrepreneur was not submitted to the inspectorate at all.
2. Actual conduct of unregistered business activity for more than 90 days is punishable by a fine of 20% of the income received by the citizen, but not less than 40,000 rubles.
3. For late registration of a business with the tax office, the fine is 5,000 rubles. If the registration is delayed for more than 90 days, the fine is 10,000 rubles. The delay is considered from the moment the first fact of revenue is established. A late penalty applies if registration documents were submitted after receipt of the first revenue, but before the tax audit.

In addition to fines for lack of and late state registration, tax authorities have the right to make additional assessments of unpaid taxes by a citizen. In this case, the illegal entrepreneur is obliged to pay personal income tax accrued on the entire amount of income proven by the inspection authorities. This also includes penalties for overdue taxes and a fine for non-payment in the amount of 20% of the total amount of additional assessments.

Sanctions, provided for by laws on taxes and fees, are imposed on the violator only by a court decision in accordance with the Civil Procedure Code.

So, we have looked at the possible consequences that may arise for a person conducting illegal business activities. Sometimes business income is so small that formalizing and paying all necessary taxes and mandatory payments eats up all the profits. Such entrepreneurs who consider it inappropriate to register their activities can be advised to attract as little attention as possible from official bodies. Eliminate complaints and claims from clients, do not conflict with potential competitors, do not engage in active advertising activities. However, this does not provide any guarantee that it will be possible to avoid liability for illegal business. Tax inspectorates, as a rule, are actively collecting information about unregistered businessmen.

If you periodically provide services to organizations, it makes sense to document your relationship with them (contract agreement, one-time labor contract). In this case, the organization will be able to act as a tax agent and pay your obligations to the state for you.

If you rent out housing on a permanent basis, you do not have to register as an individual entrepreneur; it is enough, based on an agreement with the tenant, to annually submit a tax return and pay personal income tax. Thus, protect yourself from unnecessary interest from official bodies, which may arise in the event of problems with residents or complaints received from neighbors.

If you intend to do business seriously and for a long time, then you should not delay registering it. Of course, you are unlikely to face criminal liability. And administrative punishment may not seem so significant, but any problems with government agencies can serve as a disservice in the future. For a serious entrepreneur, it is important not only to maximize profit, but also to take a responsible attitude towards your business, creating and maintaining an impeccable business reputation.

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

With the collapse of the Soviet Union, the ban on private enterprise also disappeared.

Today, anyone can become a businessman and earn money.

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

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

Don't take risks by setting up an illegal business in the hope that you'll get through. Do everything according to the rules and earn money like a law-abiding citizen.

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

In fact, each of the illegal entrepreneurs knows very well that he is violating the laws of the Russian Federation by doing business without official registration. But as soon as it comes to the responsibility that you will have to bear for your business, it immediately begins: “Yes, I didn’t even think that this qualified as entrepreneurship,” “But I didn’t earn that much,” “Why the fine,” etc. .d.

That is why it is better to study in a timely manner what signs of illegal business activity are and what types they are.

1) What should be understood by the term “Illegal entrepreneurship”?

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

There are several features:

1. frequency of the same transaction;
2. advertising your services;
3. wholesale purchases of goods that you then sell or ingredients for making products for sale;
4. client base (more than one or two people can confirm that they are your clients);
5. keeping records of your transactions;
6. the profit you receive regularly;
7. agreements (oral or written) that you enter into with suppliers, clients, distributors, etc.

As you can see, character traits businesses have many types of activities that people are in no hurry to register. For example:

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

Let's now look at 2 situations that are not entrepreneurial activities, therefore there are no fines for them.

Situation No. 1.

You inherited an apartment from your grandmother. You're happy with the apartment, but you're not very happy with the old furniture that litters your living space.

You decide to hold a sale in the yard of your house in order to sell things you don’t need for mere pennies (who will offer how much). What doesn’t sell, you think about throwing it in the trash.

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

Situation No. 2.

You have an empty apartment that you want to rent out. no need.

The conditions for conducting such activities are a formal agreement with tenants of the living space, a timely submitted declaration and payment of taxes on the profit received.

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

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

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

Depending on the severity of the offense committed, the regulations of the Russian Federation provide different types penalties for trying to earn money illegally.

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

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

Fines for illegal business and other types of punishment

There are three types of liability that are provided for illegal entrepreneurship:

• administrative;
• tax;
• criminal

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

1. Administrative liability and fines for illegal business.

The Code of Administrative Offenses of the Russian Federation (its article 14.1.1.) provides for different amounts of fines for one or another type of illegal activities.

The standard fine that someone who engages in business without official registration will have to pay is 500 - 2,000 rubles.

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

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

He is given 2 months to make a decision.

You can avoid liability if the protocol is drawn up illiterately and contains factual errors. But illegal immigrant entrepreneurs do not always experience such happiness.

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

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

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

Tax officials are primarily interested in the taxes they have not received, which were supposed to replenish the state treasury.

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

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

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

In general, the amount turns out to be serious, so it’s not worth the risk.

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

3. Criminal liability for illegal business.

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

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

• large size – 250,000 or more rubles;
• especially large size starts from 1 million rubles.

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

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

Important ! If your illegal business has come under criminal liability, consider that the jokes are over for you. Not only you yourself, but also your loved ones will suffer from this. Just imagine the stain on your family’s reputation you will put with your actions. Why take so much risk when you can register, get all the permits, pay your taxes on time and calmly work officially.

Entrepreneurial activity without registration.

What is the responsibility for the lack of an individual entrepreneur or license?
Detailed consultation.

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

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

In our country, such behavior is considered snitching and is strongly condemned.

The government, on the other hand, has a different opinion and asks the population to show civic awareness by reporting cases of illegal business that they know of.

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

All that is needed to demonstrate consciousness is to draw up a complaint in any form. The main thing is to indicate who is doing illegal business and where.

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

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

Desperate to earn a large amount of money on state enterprise, some brave souls decide to start own business. This is a risky business, but if the outcome is positive, it brings good income.

However, the situation is not limited to one risk: when starting your own business, you should first find out what obligations the state imposes on entrepreneurs of this kind, and in what case your activity will be legal.

Features of the crime

Each of us periodically faces the need to provide some kind of service to other people. For example, girls often do each other’s hair for a symbolic payment, but such activity cannot be regarded as entrepreneurship, because permanent income a single case of the sale of a product (say, a dress brought from abroad) or a service provided (for example, repairing plumbing) does not constitute.

In other words, selling limited quantity goods, and even with a limited assortment, just like the random provision of services do not lead to systematic profit making.

According to Article 2 of the Civil Code, entrepreneurship should be understood as activities carried out independently and at one’s own risk. The purpose of this activity is to obtain systematic income.

Signs of entrepreneurship are given in the letter of the Federal Tax Service dated March 18, 2010 No. 20-14/2/028463. This:

• Manufacturing or purchasing goods or property with the aim of subsequently making a profit (for example, buying housing or transport);
• Keeping records of operations, that is, the availability of documentation that reflects the activities of the organization;
• The presence of a relationship between individual actions of a certain individual over a period of time comparable to his conduct of business activities;
• The systematic nature of the activity.

Courts, based on the above criteria, often prove that the activity carried out by a particular person is an enterprise, which gives grounds to hold him accountable depending on the type. So, now you know the elements of the crime and the features of illegal entrepreneurship, let’s talk about the punishment for it, for example, what the fine is for illegal entrepreneurship of individuals.

The following video contains legal advice on the issue of illegal business activities of an individual:

Responsibility for illegal business

So, having decided to start a business, a citizen is obliged to register as or individual entrepreneur(IP).

• By failing to do this, the citizen deprives himself of state protection, which is guaranteed to individuals who have registered themselves as a legal entity or individual entrepreneur.
• In addition, when considering any transactions concluded by an illegal entrepreneur, he does not have the right to refer to the fact that he is not an entrepreneur.

Not only civil law norms apply to illegal entrepreneurs. If the obligations established by the state for entrepreneurs are violated, violators may be subject to administrative or criminal liability.

Administrative

Article 14.1 of the Code of Administrative Offenses is used when it is possible to prove that a person carried out business activities that generated income of up to 1,500,000 rubles a year, but, contrary to the law, it was not registered. The violator is given a fine in the amount of 500 to 2000 rubles.

The main feature of conducting entrepreneurial activity is the systematic receipt of income. In other words, if a person carried out a certain operation at least twice a year that brought him profit, we can talk about entrepreneurship.

The following facts are cited as evidence that a person is engaged in business:

• Evidence of buyers or users of services provided by this person;
• Documents confirming payment, acts of acceptance and transfer of property, receipts, account statements, etc.;
• Advertisements and banners;
• Data on the purchase of goods;
• Information about the rental of commercial premises.

An interesting point: although profit is the main goal of entrepreneurship, its absence does not negate the application of Article 14.1, since it is not a mandatory result of the activities of an individual entrepreneur.

The following video is dedicated to discussing improvements to existing regulations Russian Federation in order to influence illegal entrepreneurship:

Criminal

A separate article is devoted to illegal entrepreneurship in the Criminal Code of the Russian Federation - Art. 171. The first part of it stipulates the implementation of entrepreneurial activities

• without registering it;
• with a significant violation of the registration rules; c) by providing false data to the registration authority;
• in the absence of a license, when having one is mandatory. If these actions cause major damage to the state, organizations or ordinary citizens or are associated with the extraction of large (more than 1,500,000 rubles) income, one of the following measures is applied to the accused:
  • (up to 300,000 rubles or equal to income for 2 years maximum);
  • (180 – 240 hours);
  • (up to six months).

When the specified activity was carried out by an organized group, or the income was received in a particularly large amount (more than 6,000,000 rubles), Part 2 of Article 171 of the Criminal Code is applied. The penalties here for illegal business are as follows:

• Fine (100,000 - 500,000 rubles) or seizure of income (for 1 - 3 years);
• (up to 5 years), supplemented by a fine (up to 80,000 rubles) or seizure of income for a maximum of six months.

It should be taken into account that income is understood as the profit received by an illegal individual entrepreneur during his activity without deducting expenses.

According to the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23 of November 18, 2004 on illegal entrepreneurship, for the application of Article 171, it must be clearly established that the activities of a person fall under the definition of entrepreneurship (Article 2 of the Civil Code). If a citizen, carrying out a one-time transaction with the receipt of large income, say, from the sale of an apartment, evades paying taxes, Article 198 of the Criminal Code is applied.

Now let's look at some cases from judicial practice on illegal entrepreneurship and its consequences.

Arbitrage practice

Since only a legal entity or individual entrepreneur can act as a plaintiff or defendant in an arbitration court, a person conducting business activities but not registering it can only participate in court sessions general jurisdiction. The issue of jurisdiction is addressed in the following example.

Example 1. Citizen K. appealed to the Supreme Court with a supervisory appeal because he believed that when a decision was made against him in a case of administrative liability under Article 14.1 of the Code of Administrative Offenses, the rules of jurisdiction were violated, which means that the decision itself was subject to cancellation.

The essence of the matter was as follows. Citizen Sh. reported that K. is carrying out illegal business activities, namely, installing double-glazed windows. The court was presented with evidence: information about the purchase of K. 91 double-glazed windows, invoices, copies of invoices for payment of services, Flyers etc. Based on the materials presented, the magistrate found K. guilty. The defendant did not agree with the verdict and appealed to the district court, and then to the regional court.

Example 2. Administrative cases are considered by district courts, but according to the rules of proceedings they are conducted in the court of first instance. This is what happened in the case of K.: the case was considered by the district judge, and after an administrative investigation, the materials were transferred to the magistrate, who ruled that K. was guilty under Article 14.1. Thus, the Supreme Court did not find any grounds for declaring the decision illegal.

If your business is legal (included in the list of activities permitted in the region where the enterprise is opened), but you have not registered as an individual entrepreneur, the category of liability and fine of an individual for entrepreneurial activity will depend on the following circumstances:

• The period for conducting shadow commercial activities until registration.
• The amount of potential income received. The profit taken to determine the fine does not have to be received by you in reality; its value is calculated theoretically based on existing evidence. So, if according to the documents you signed a deal for 100,000 rubles, but in fact received only 20,000, when the case is considered, the first amount will be accepted.

Thus, in the absence of business registration, you will be held accountable both for the fact of concealing information about the conduct of activities, and for failure to pay taxes on the profits received.

According to the Tax Code of the Russian Federation (as amended on February 19, 2018), in the case where the registration of an individual entrepreneur was carried out within a period of more than 30 days from the start of operation of your enterprise, the fine is set at 10,000 rubles. When an entrepreneur was caught running a shadow business without registering for more than 3 months, the fine to an individual for illegal business activity will be 10% of potential income, but not less than 40,000 rubles. However, liability does not apply to the following cases:

• if the face leading activities, under 16 years of age;
• registration was not completed due to extreme circumstances (unforeseen natural disasters, military conflicts, illnesses requiring hospitalization or isolation);
• the illegal activity was carried out three years before the violation was established (according to the statute of limitations).

If there are mitigating circumstances (personal family, forced violation, difficult financial situation), fines can be reduced by at least half. If aggravating circumstances are discovered (for example, if this is not the first violation), the amount of the fine is at least doubled.

Directly for failure to pay taxes on profits received as a result of illegal activities, two types of fines are imposed:

1. 20% of the tax amount;
2. 40% of the tax amount if it is proven that intentional concealment of income received was committed.

IN mandatory Tax is also paid on the profit received for the entire period of the illegal business.

Administrative fines for carrying out illegal business

In addition to tax obligations, administrative fines stipulated by the Civil Code (as amended on December 29, 2017) are imposed on illegal commercial activities. They include both penalties for lack of registration of individual entrepreneurs (LLC), and for carrying out activities without the appropriate permits (licenses).

General provisions and amounts of possible fines

On this moment The administrative fine for business activities without an individual entrepreneur, depending on the scale of the business and accompanying circumstances, ranges from a minimum of 500 to a maximum of 2000 rubles. In turn, responsibility for the lack of a compulsory license and violations of licensing standards involves the imposition of the following types of fines:

• for individual entrepreneurs from 2,000 to 500,000 with the possibility of confiscation of the enterprise’s property (products and equipment for its production);
• for an official from 4000 to 5000 rubles;
• for a legal entity from 40,000 to 50,000 with possible confiscation.

In case of violation of licensing requirements, the following fines are additionally imposed:

• for individuals in the range from 1,500 to 2,000 rubles, and in case of gross violations (parameters are set in separately depending on the specific type of activity) from 4,000 to 8,000 rubles;
• For officials from 3,000 to 4,000 rubles, with extremely gross deviations from the norm from 5,000 to 10,000 rubles;
• for legal entities from 30,000 to 40,000 rubles, for serious violations from 100,000 to 200,000 rubles with suspension of the enterprise.

Fines for illegal business in certain categories

In certain categories of activities, the fine for illegal business activities in 2018 will be significantly higher than the above amounts, and in some cases, in addition to administrative liability, criminal liability will be imposed. This includes the following categories:

• Illegal gambling without registration and license (including online) outside gambling zones- from 700,000 to 1,000,000 rubles with the possibility of complete confiscation of equipment and a term of imprisonment of up to 6 years.
• Organization of illegal games in gambling zones- from 2,000 to 4,000 rubles for ordinary citizens, from 30,000 to 50,000 for officials, from 500,000 to 1,000,000 for legal entities (including violations of license terms).
• Entrepreneurial activity in the transport sector- 5,000 rubles for individuals, 100,000 rubles for individual entrepreneurs, 400,000 rubles for legal entities. For a repeated violation, the fine for individuals is doubled, and for other categories it remains the same, but the vehicle is confiscated.
• Selling things ( jewelry, weapons, toxic substances) prohibited or restricted by law- from 1,500 to 2,000 rubles with complete confiscation of goods for citizens not registered as an entrepreneur, also from 3,000 to 4,000 rubles for senior officials, from 30,000 to 40,000 rubles for legal entities.
• Wholesale and retail medicines- from 1,500 to 3,000 rubles for unregistered entrepreneurs, from 5,000 to 10,000 for officials and from 20,000 to 30,000 for legal entities.

In addition to this, in separate category In 2018, illegal trade in tickets (documents for obtaining them) for the FIFA World Cup was classified. Thus, resale and sale without the appropriate documents (subject to the fact of making a profit) is subject to a fine of up to 25 times the cost of the ticket being sold (but not less than 50,000 rubles) for citizens, up to 30 times the cost of the ticket for officials (but not less than 150,000 rubles), as well as from 500,000 to 1,000,000 rubles for legal entities. Sale of counterfeit tickets - from 50,000 to 70,000 rubles for unregistered entrepreneurs, from 150,000 to 200,000 rubles for officials and individual entrepreneurs, and from 1,000,000 to 1,500,000 rubles for legal entities, but only if there are no criminal offenses as part of the violation.

Criminal liability and fines for illegal business

If a shadow business entails damage in large (from 100,000 to 250,000 rubles), as well as especially large (from 1,000,000 rubles) amounts, a fine for entrepreneurial activity without registering an individual entrepreneur can also be imposed within the framework of criminal liability in accordance with the Criminal Code of the Russian Federation (ed. 24.03 .18). In this case, the following consequences are possible:

• A fine of up to 300,000 rubles or two years’ salary for individuals whose illegal business activities resulted in major damage. If it is not possible to pay fines, correctional labor or complete imprisonment for six months is imposed.
• If the above was committed by a group of persons or the damage is classified as particularly large, the possible fine ranges from 100,000 to 500,000 rubles or in the amount wages(basic income) for three years. If it is impossible to pay the amount, the fine is reduced to 80,000 rubles, but the culprit receives a prison term of up to five years.
• Production and storage of products in violation legislative norms are subject to a fine of up to 300,000 rubles.
• Illegal production and trafficking alcoholic products is subject to a fine of 2,000,000 to 3,000,000 rubles. If a group of people participates in a crime, the fine ranges from 3,000,000 to 4,000,000 rubles.
• Regular illegal sale of alcohol by an individual is subject to a fine of 50,000 to 80,000 rubles.

Prospects for tougher punishment for illegal business

According to the majority of deputies of the State Duma of the Russian Federation, one of effective methods Bringing the domestic economy out of the shadows is to tighten penalties for carrying out illegal business, and active work is currently underway in this direction. For example, in March 2018, a bill was submitted to the State Duma to increase fines for commercial activities without registration from the current level of 500 to 2,000 rubles, to a level of 3,000 to 5,000 rubles. The document provides for similar changes for entrepreneurs who are in no hurry to obtain licenses.

In addition, self-employed persons previously exempt from taxes, who may also not register their activities until the end of 2018, may soon find themselves in the category of illegal entrepreneurs. To solve the problem of legitimizing their activities, it was proposed to introduce a tax of 3% on income received as a result of providing services to individuals and 6% in cooperation with legal entities. If the project receives approval, all self-employed citizens may be among the illegal immigrants, which will entail the above fines.

Another category of fines that Russians can expect this year is for the illegal sale of sanctioned products. It is planned that they will range from 3,000 to 5,000 for individuals, from 30,000 to 50,000 for officials and from 70,000 to 100,000 for legal entities.

When considering the question of what the fine for illegal business activity will be in 2018 for each specific type of business, one should take into account the entire complex of circumstances present in the case, which can mitigate or, on the contrary, aggravate the situation. However, you should not assume that if the profit you receive is low and goes entirely to ensuring household, you can avoid punishment.