Illegal entrepreneurship of its varieties and criminal liability. Consequences of illegal entrepreneurial activity. What should be understood by the term "illegal business"

What punishment is provided in 2018 if business is carried out with violations - non-payment of taxes, lack of a license, contract, etc.?

It is not always the provision of services in a friendly way for a fee, as well as doing business, promises only income and profit. According to the legislation of the Russian Federation, for conducting illegal entrepreneurial activity penalties and criminal penalties, up to and including imprisonment.

Violation of the Federal Law of the Russian Federation may be due to ignorance of legal issues, as well as intentionally, for the purpose of enrichment. Depending on the form of violations, the amount of profit and the duration of the period of unauthorized entrepreneurship, a citizen may be subject to administrative and criminal liability.

How not to cross the line of the law, pay income tax in a timely manner and find out the permissible limits of independent entrepreneurship? For any questions, it is best to contact an experienced lawyer. Our company offers a range of services - from free consultation on the website and by phone to legal protection in court.

Illegal entrepreneurship should be understood as doing business in one's own interests, but without formalizing any relationship (regarding one's own work or an employee).

What activities qualify as illegal:

independent conduct of business by an individual / legal entity;
the purpose of the activity is the systematic receipt of income;
type of entrepreneurship - the provision of services, the sale of goods, etc.

The provision of services on a paid basis once does not require official registration at the tax office. It is necessary to register a business if you plan to work on an ongoing basis with different people / organizations.

Note!

The main difference between illegal entrepreneurship is the absence of labor agreements in any form (civil law contract, labor agreement, official employment, etc.).

Types of illegal business

Any activity that does not comply with the requirements of the law falls under the criminal and administrative article of the Federal Law of the Russian Federation and is recognized as illegal. If one of the points is applicable to business, then you should think about legalizing income:

entrepreneurship is carried out without registration of an individual / legal entity in the tax office - IP, LLC, JSC, farming etc.;
activities do not correspond to those stated in the documentation (for example, instead of individual entrepreneurs for tailoring, animals are bred and sold, alcohol products are sold, etc.);
lack of licenses and permits;
the information provided to the registration authorities is deliberately false.

As an example, we can cite several main types of illegal business in 2018, for which criminal / administrative liability occurs:

rental of housing, rental of vehicles and equipment;
freight and taxi services;
construction, repair and household services to the population;
interpretation/written translation, programming, author's texts, etc.

For each of the violations, punishment is provided, which entails the imposition of a fine and criminal liability.

remote work(programming, freelancing, tutoring, etc.) also belong to entrepreneurship and must be officially registered in one of the forms - individual entrepreneur, civil law contract with an individual, employment, etc.

The civil law form of relations imposes a number of obligations on the employer (customer), who can be held liable for violation of agreements if the tax authorities consider such an employment contract.

To reduce the risk of problems with law enforcement when doing business, it is better to first consult with experienced lawyers on registration and the choice of the form of taxation. This will allow you to receive income legally, without violating the Federal Law of the Russian Federation.

Consequences of illegal business

Depending on the amount of illegal income for the year, as well as the type of illegal business, a businessman is subject to criminal or administrative punishment under a number of articles of the law. What threatens for non-payment of taxes, lack of registration and unofficial employment of an employee? Answers to questions are presented for 2018, without reference to a specific situation. You can get legal advice on your case on the Lawyer website by contacting the feedback form or by phone.

Administrative liability for illegal business

Fact illegal business set by the tax inspectorate, the antimonopoly committee, the police/prosecutor's office and the consumer market supervisory authorities. A protocol on the fact of violation of the law can be drawn up as a result of a number of verification measures:

test purchase;
inspection of the premises;
complaint from a customer/partner, etc.

Cases are considered by the justice of the peace within 3 months from the moment of drawing up the protocol, if the amount of damage does not reach a large amount.

If there are errors, contradictions and violations in the protocol, then the case is referred to the court only after the truth is established and changes are made to the document. In case of expiration of the statute of limitations, the prosecution of the case may be terminated if you choose the right defense counsel and seek the support of an experienced lawyer in a timely manner.

The consequences of entrepreneurship that occur when carrying out activities without a license and registration are regulated by the administrative and tax code of the Russian Federation:

Art. 116 of the Tax Code of the Russian Federation - a fine of up to 40 thousand rubles. and in the amount of 10% of income, provided for violations of the terms of registration and profit without registration;
for citizens carrying out activities without the status of an individual entrepreneur, penalties are determined according to part 1. Art. 14.1 of the Code of Administrative Offenses of the Russian Federation - from 500 to 2 thousand rubles;
also under Art. 14.1 of the Code of Administrative Offenses of the Russian Federation provides for punishment for entrepreneurship without a license, violation of deadlines and documenting these permits for legal entities and officials, which affects the amount of the fine and additional restrictions on the conduct of activities.

Other penalties and sanctions for gross and minor violations can be found in the Federal Law of the Russian Federation of 2018, as well as by contacting lawyers for advice. Yearly changes legislation requires careful consideration of each issue, since what was allowed last year can now turn into serious problems for the entrepreneur.

Criminal punishment for entrepreneurship (large size) under Art. 171 of the Criminal Code of the Russian Federation

In the case when damage to the state/citizens/ legal entities has a large size (more than 2.5 million rubles), illegal business is considered in the courts as a criminal offense under Art. 171 of the Criminal Code of the Russian Federation. Under this article, punishment may be in the form of a fine or imprisonment, depending on the circumstances:

entrepreneurship without registration and license - a fine of up to 3 thousand rubles, arrest for up to 6 months, compulsory work up to 480 hours;
if the damage is especially large (from 9 million rubles), and entrepreneurial activity was carried out by a group of persons, then the punishment may be in the form of penalties up to 500 thousand rubles, forced labor up to 5 years, imprisonment up to 5 years, together with payment a fine of up to 80 thousand rubles. (at the discretion of the court).

When investigating illegal business activities, additional violations may appear - consumer fraud, use trademark and copyright, trade in confiscated products, and so on. This will lead to new fines and litigation, which can be avoided by contacting qualified lawyers and legalizing your business in a timely manner.

Summary

Responsibility for illegal entrepreneurship comes under the Criminal Code of the Russian Federation with an amount of damage of more than 2.5 million rubles. In other cases, preventive measures are selected according to the AC RF and the RF Tax Code.

What business is illegal, who can report infringement, and who is responsible:

common violation of the law - lack of a license and violations of the terms and type of licensed products in accordance with the regulations in force on the day of doing business;
also often in judicial practice there is untimely registration of entrepreneurial activity, as well as its continuation after the closure of the organization, individual entrepreneur;
the defendant in the case may be an individual, legal entity, head of the enterprise;
the maximum preventive measure for the amount of damage of more than 9 million rubles. - Imprisonment for up to 5 years.

Lack of a tax return, delay in registration, knowingly false information about income and other violations are regulated by the tax code of the Russian Federation. Such acts are considered as an independent violation or in conjunction with administrative and criminal offenses related to doing business.

Comments

I downloaded Yandex on the Internet and decided to earn extra money, and on the very first flight I was stopped and charged with illegal business and took the car to a fine parking lot, since I did not know that a license was needed for such work.

What threatens me?

And another employee of the UBEP told me that for the period while the car will be parked until the court, I will not have to pay for these days, since it is material evidence

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I was presented with an administrative violation of the law and was told that the justice of the peace would decide my further fate

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For doing business without registering as an individual entrepreneur, administrative, tax and criminal liability is provided. Each of the types of liability implies its own rules for fixing a violation, drawing up documents and actually bringing to responsibility.

According to the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, and the provision of services.

To confirm the conduct of activities, it is necessary to prove two circumstances: systematic and profit. Systematic activity is considered if it is carried out two or more times a year. When a citizen once sold some property or rendered a service to someone, from this he will not be considered to be engaged in entrepreneurial activity. Similarly, if a person sells goods, including systematically (that is, more than twice), but for the same money for which he bought them, or cheaper, the transactions will not be considered entrepreneurial activity. Because there is no profit.

Code of Administrative Offenses of the Russian Federation

Let's start with administrative responsibility. It is provided for by Part 1 of Art. 14.1 of the RF Code of Administrative Offenses. Possible fine is from 500 to 2000 rubles.

The decision to prosecute is made by the justice of the peace (Article 23.1 of the Code of Administrative Offenses of the Russian Federation). The case may be considered either at the place where the offense was committed, or at the place of residence of an individual (if he files a petition for consideration of the case at his place of residence). A protocol on violation, that is, conducting activities without registration, is entitled to draw up: the police, the tax inspectorate, the territorial bodies of the ministry for antimonopoly policy, the state inspectorate for trade, the quality of goods and consumer protection (Article 28.3 of the Code of Administrative Offenses of the Russian Federation). In addition, file a case for administrative offense the prosecutor can (Article 28.4 of the Code of Administrative Offenses of the Russian Federation). Usually, employees of one of the listed departments come to an individual with an inspection, inspect the premises or test purchase, find that the individual is operating illegally, that is, without registering as an individual entrepreneur, after which a protocol is drawn up.

Operating without registering as a sole trader is a continuing offence. It is possible to bring a citizen to responsibility only within two months from the date of drawing up the protocol.

Note. For the implementation of entrepreneurial activities without registration as an individual entrepreneur, administrative, tax and criminal liability is provided.

When the protocol is drawn up incorrectly, there are contradictions in it, the judge must return the document to the department by which it was drawn up for revision. Two months is a fairly short period, and while the protocol is being finalized, the period often has time to expire. If the case is not considered by the judge within two months from the date of drawing up the protocol, the judge will issue a decision to terminate the proceedings on the case of an administrative offense.

Criminal Code of the Russian Federation

Criminal liability for illegal business is provided for in Art. 171 of the Criminal Code. It occurs if, as a result of an audit conducted by the police or the prosecutor's office, it is proved that either the infliction of large damage to citizens, organizations or the state, or the receipt of income on a large scale, that is, in the amount of at least 250 thousand rubles. (Note to Article 169 of the Criminal Code of the Russian Federation).

Considering that test purchases are usually carried out for small amounts, it is unlikely that such a criminal offense will be detected in a test purchase. Cases of illegal entrepreneurship are usually discovered during the investigation of cases on the legalization of proceeds from crime. The rest of unregistered entrepreneurs should not worry about criminal liability, because to prove the receipt of income in the amount of more than 250 thousand rubles. difficult, so the police usually open cases under Art. 171 of the Criminal Code, if he does not have evidence of receiving income on a large scale.

Liability for illegal business causing damage from 250 thousand rubles. up to 1 million rubles (that is, on a large scale) as follows: a fine of up to 300 thousand rubles. or in the amount of the salary (other income) of the convicted person for a period of up to two years, or compulsory work for a period of 180 to 240 hours, or arrest for a period of four to six months.

For illegal entrepreneurship with causing damage or deriving income on an especially large scale, a fine of 100 to 500 thousand rubles is provided. or in the amount of the salary (other income) of the convicted person for a period of one to three years, or imprisonment for up to five years with a fine of up to 80 thousand rubles. or in the amount of the salary (other income) of the convicted person for a period of up to six months. Damage or income exceeding 1 million rubles is considered especially large.

If a citizen is brought to criminal responsibility for the first time, and even positively characterized by neighbors, at the place of work, is not a malicious violator of public order, then most likely he will be awarded only a fine.

Owners of residential premises, renting them out, must keep in mind that for renting out residential premises to be held criminally liable under Art. 171 of the Criminal Code is impossible, regardless of the amount of rent that the investigator can prove. This was announced by the Supreme Court of the Russian Federation in the Decree of the Plenum of the Supreme Court of the Russian Federation of November 18, 2004 N 23.

tax code

In the Tax Code, liability for activities without registration is provided for in two articles at once: 116 and 117. For evading registration with the inspection, a fine of 10 percent of the income received, but not less than 20 thousand rubles, is threatened. In the case when the activity was carried out for more than 90 calendar days, the fine will be 20 percent of the amount of income, but not less than 40 thousand rubles. (Article 117 of the Tax Code of the Russian Federation). For violation of the deadline for registration with the inspection, the fine will be 5 thousand rubles. or 10 thousand rubles, if the delay is more than 90 calendar days (Article 116 of the Tax Code of the Russian Federation). Only one of the articles can be punished. Let's see when each of them applies.

A citizen must register with the inspection before he begins to receive income from activities. Therefore, the periods of delay for the application of the above articles should be counted from the moment of the first proven case of receipt of proceeds. According to Art. 116 will be fined if an application for state registration is submitted before the tax audit report is drawn up, but later than the day the first revenue is received. If, as of the date of drawing up the tax audit report, the application has not yet been submitted, liability arises under Art. 117 of the Tax Code.

In addition to the fine for the lack of state registration, inspectors have the right to charge additional taxes by calculation. A failed merchant will be charged additional personal income tax and contributions to off-budget funds. And if in the region where the individual entrepreneur works, the activity is transferred to UTII, and the activity of the entrepreneur falls under this regime, then instead of income tax, controllers will calculate UTII. Penalties for late payment will be added to the amount of taxes calculated by the inspectors. In addition, a fine of 20 percent of the amount of additionally assessed taxes and penalties is established for non-payment of taxes (Article 122 of the Tax Code of the Russian Federation).

Note. In addition to the fine for the lack of state registration, inspectors have the right to charge additional taxes by calculation, as well as set penalties and a fine for their late payment.

Taxes and fines individuals collected in court according to the rules provided for by the Code of Civil Procedure, in a court of general jurisdiction. So the decision of the controllers or the protocol alone is not enough, the perpetrator will pay the fine only on the basis of a court decision.

We pointed out possible sanctions that threaten individuals who carry out activities without registration. The final verdict depends on the situation, the facts and the decision of the court. The most effective method of protection against inspectors is not to let them into your territory, especially if the activity is carried out by a citizen at home. Inspectors have the right to enter the residential premises only by a court decision. But inspectors can get information about the conduct of illegal activities not only during the audit. Of course, there is the possibility of an accidental visit, but it is small. Basically, controllers come after receiving messages from the businessman's competitors or complaints from offended buyers. Tax inspections collect information about unregistered entrepreneurs. Having accumulated information, they can appoint an on-site inspection, inspect the premises and territories used to generate income. Other departments (police, prosecutor's office, Rospotrebnadzor) will come to check an unregistered entrepreneur, most likely in connection with complaints received by deceived buyers.

In Russia, as in most other countries, there is liability for illegal business activities, and the punishment of an individual depends on the severity of the violation. After all, a citizen who actually receives income from his occupation exercises his rights, but avoids many types of duties, including the payment of taxes.

What is entrepreneurial activity

In Russian legislation, entrepreneurship is considered to be an activity that a citizen conducts with the aim of obtaining regular, permanent profits. It includes the provision of various services, the manufacture and sale of goods, the rental of premises. According to article 14 of the Civil Code, an individual acquires the right to such an occupation only if he is registered as an individual entrepreneur. Otherwise, he faces a fine for illegal business activities.

Thus, individual facts of the sale of goods or the provision of services are not considered a violation. But provided that the volume of services, the amount of goods sold, and other circumstances do not indicate the systematic nature of transactions. The evidence to the contrary is: testimonies of witnesses, payment documents (bank statements, receipts for receiving money), acts accepted works. Also taken into account:

facts of placing goods for sale in public places,
advertising of any kind,
bulk purchasing facts,
conclusion of a lease agreement for premises for a specific purpose.

At the same time, in itself, the presence or absence of profit does not play a role in determining the fact of violation of the law. It is important that the actions were performed repeatedly within a certain period.

Since the property of an individual entrepreneur is not actually delimited, there are controversial issues regarding the rental of housing. In order for such a fact to be regarded as an economic source of income, it is necessary to prove that:

it was acquired or created specifically for profit;
hiring transactions were recorded as business transactions;
there are long-term relationships with consumers of services;
there is a purposeful interconnection of all transactions.

In 2004, the Resolution of the Supreme Court determined that the renting out of one's own residential premises with the receipt of income by private individuals does not entail liability for illegal entrepreneurship. Therefore, it is not necessary to register as an individual entrepreneur in this case.

Liability for illegal business activities

There are two types of liability for offenses in economic sphere- administrative and criminal. In order to hold a citizen accountable, there must be (and proved in court) facts that testify to their permanent nature (systematic). Responsibility for illegal entrepreneurial activity depends on the amount of damage caused to the state or affected citizens and organizations.

Types of administrative penalties

Administratively, citizens are involved under Article 14.1 of the Code of Administrative Offenses. Paragraph one states that the fine for illegal entrepreneurship (without an IP certificate) ranges from 500 to 2,000 rubles. In case of simultaneous violation of several norms, the penalties are summarized, for example:

sale (storage, transportation) of goods without marking - this is a plus of article 15.12 (a fine of up to 4 thousand rubles with confiscation);
the provision of catering services in violation of sanitary standards - adds Art. 14.4 (up to 2 thousand, again - up to 5 thousand rubles);
in violation of the rules of sale certain types goods, such as cigarettes - Art. 14.5 (plus 1 thousand rubles);
sale of goods restricted or prohibited for sale (medicines, weapons) - Article 14.2 (up to 2 thousand and confiscation).

Note that the Code of Administrative Offenses provides for a significantly smaller amount of fines for citizens than for registered individual entrepreneurs.

State registration is the main, but not the only condition for doing legal business. If a citizen carries out work that is subject to licensing, or is associated with obtaining a special permit (SRO - during construction, for example), he may additionally receive a fine for illegal business activities without a license. This is established by paragraphs 2,3, and 4 of Article 14.1 of the Code of Administrative Offenses.

These types of services include, in particular:

educational and medical;
transportation of citizens by passenger transport;
acceptance and processing of scrap metal;
development of computer programs;
providing communication.

For such illegal entrepreneurship, administrative responsibility comes on a more serious scale.

For work without a license (special permit), if they are required by law - a fine of up to 2.5 thousand rubles with possible confiscation of equipment, raw materials, manufactured products (at the discretion of the court).
For violation of the terms of a licensed permit - up to 2 thousand rubles. (cases of gross violations against individuals are not considered).

Judicial practice shows that a significant part of cases for illegal entrepreneurial activity under the Code of Administrative Offenses of the Russian Federation ends with termination due to the expiration of the statute of limitations. In half of the cases, confiscation turns out to be impossible, because the tools of labor do not belong to the violator of the law, but to another person.

Criminal liability for illegal activities

It occurs when independent risky actions of a citizen have caused serious negative consequences. In this case, illegal entrepreneurial activity entails the punishment of an individual under Article 171 of the Criminal Code.

A fine of up to 300 thousand rubles, or may be imposed in the amount of income received over the past 2 years. Either by a court decision - compulsory work (up to 2) or arrest - up to 6 months.

These types of punishments are imposed for work without state registration (as well as without a license), if damage has been caused, or the income generated reaches a large amount. IN latest edition(2016) it includes the amount of 2.2 million rubles.

The amount of penalties increases to 500 thousand rubles, or up to 3 annual incomes, forced labor or imprisonment is possible - up to 5 years. Provided: the actions listed in the first paragraph were accompanied by aggravating circumstances:

several persons (group) participated in the extraction of income;
the profit received reached a particularly large size - 9 million rubles.

Since 2010, penalties for illegal entrepreneurial activity, as well as for economic crimes in general, have been applied less frequently. This is due to the fact that cases have become more frequent when market participants have tried to resolve purely competitive relations in this way. As a result of mitigation of the Criminal Code:

abolished punishment for work in violation of license rules (remained only for complete absence registration or permit);
significantly increased the amount of damage, allowing it to be classified as large (it was 250 thousand, and 1 million - especially large);
limited the possibility of detention - now this is possible only as an exception, if the identity of the suspect is not established or he has a permanent place of residence on the territory of Russia, or is hiding from the investigation.

The specificity of criminal prosecution lies in the fact that liability is linked to the amount of damage caused. Therefore, if it is not proven, then the offense is considered as an administrative violation. If a citizen committed a crime for the first time, and fully compensated for the harm caused, and also made an additional double compensation to the budget, exemption from liability is allowed (Article 76.1 of the Criminal Code).

Real Russian life: theory and practice

Most often, they are brought to justice for illegal business for “hands-on” trading. Just because such an occupation is manifested clearly, and usually there are witnesses. As for, for example, programmers, tutors, cooks - this is practically impossible. It is difficult to prove that a person systematically performed work for several customers over a certain period.

The most common type of illegal services is construction. Given that the fine for illegal entrepreneurship is 2,000 rubles, which is incommensurable with the payment for contract work, there is no point in such a punishment. It is difficult to talk about confiscation when a built residential building acts as a manufactured product. Even for work without a permit, it is impossible to attract, since the supervisory authorities in the field of work safety do not have the right to draw up administrative protocols in relation to an individual. They can only punish a registered individual entrepreneur or organization.

Due to the uncertainty of the concept of illegal entrepreneurial activity, the punishment of an individual is rather difficult, and therefore judicial practice in such cases practically does not add up. The question is regularly raised about the exclusion of many types of services from the category of entrepreneurial: educational, contracting, legal.

So, from January 1, 2017, citizens providing services of nannies, nurses, tutors were classified as self-employed. Provided they volunteer to declare their occupation, they are exempt from fines and taxes until 2020. Hardly new law encourage citizens to come out of the shadows. Indeed, in 2 years you will have to buy a patent, or pay personal income tax on the income received, and the employer - insurance premiums. In this case, all of them will be known to the tax authorities.