home Audience 5 Legal status and registration of an individual entrepreneur in the Russian Federation. Concept and legal status of an individual entrepreneur

Legal status and registration of an individual entrepreneur in the Russian Federation. Concept and legal status of an individual entrepreneur

The status of an individual entrepreneur is determined at the legislative level in accordance with the form of business. It gives the individual entrepreneur rights and responsibilities that must be adhered to without fail. Every businessman should know about this parameter.

Definition of status

When starting economic activity, subjects inevitably face a choice: to give preference to one or another organizational and legal form of carrying out business processes. In order to make the right choice and take the most advantageous position in the way of conducting business affairs, it is necessary to carefully consider all the positive and negative aspects characteristic of the existing organizational and legal forms.

The civil legal status of an individual entrepreneur is determined in two ways, since the form of business transactions under consideration includes characteristics belonging to different persons. We are talking about both individuals and business entities of a legal entity.

There are a number of documents defining the position of individual entrepreneurs. In accordance with the Civil Code of the Russian Federation, it is possible to identify a list of entities related to individuals and engaged in entrepreneurial activities. Individual entrepreneurs include citizens who carry out entrepreneurial activities, but there is no requirement to create a legal entity. Having read the Civil Code of the Russian Federation, it becomes clear that according to the law, individual entrepreneurs are not included in the composition of legal entities. However, classifying them as individuals is incorrect.

The most correct option in determining the legal status of an individual entrepreneur is to classify him as a separate group of individuals who are not classified as legal entities. But in connection with conducting business activities for commercial purposes, they are endowed with specific powers that extend to the sphere of entrepreneurship. Outside of this area, individual entrepreneurs are considered ordinary citizens of the state with the status of an individual.

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Specific features

The legal status of an individual entrepreneur, from a legal point of view, is determined by the characteristics of origin. An individual entrepreneur is recognized as a participant in business processes, since he carries out activities of an entrepreneurial nature. The formation of a business entity as such is not carried out.

This duality determines the rights that accompany obtaining the status of an individual entrepreneur, especially the right to receive commercial benefits.

Individual entrepreneurs can only engage in a limited list of activities. It was determined by the relevant government authorities and excludes, for example, the possibility of selling alcoholic beverages or selling services related to security activities.

Therefore, each business entity must, before registering an individual entrepreneur, carefully read the list of prohibited types of manipulations that imply the need to open a limited liability company. There are restrictions related to the tax policy pursued by the state government, so a thorough check of the actual activities of the subject is carried out.

Obtaining the status of an individual entrepreneur does not mean that the property belonging to the subject will be divided into categories (those participating in the business and those not). In this situation, both pros and cons can be identified. For example, it is possible to use a previously acquired item of property to make a profit as part of a commercial activity.

However, the negative side is that all property may be subject to seizure if the individual entrepreneur has unfulfilled obligations to creditors.

In this case, the property of the individual entrepreneur will be transferred as payment of debt, while no records are kept of the property that was or was not involved in the process of activity.

Among the obligations of individual entrepreneurs, there is the need to make timely payment of tax payments, the amount of which is calculated according to the form. It should be taken into account that mandatory payments include amounts sent to the Pension Fund. In many regions of Russia, individual entrepreneurs have a special position, which is supported by the support of representatives of local governments. This manifests itself in the form of benefits provided for by law. Such activities are carried out by the state for the development of small businesses.

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Positive sides

After documents confirming the status of an individual entrepreneur have been drawn up, the entrepreneur has special rights and obligations. The most important right is that an individual entrepreneur has the opportunity to carry out activities for the purpose of making a profit.

An individual entrepreneur with civil legal status is exempt from the obligation to make tax payments (they are calculated on the amount of income received by individuals). To register legal status, a number of necessary documents are collected, their number is minimal. The costs associated with the relevant registration are somewhat lower than for registration of other forms of law.

Individual entrepreneurs are subject to fines for violating provisions defined at the legislative level. However, their size is significantly less than the amount of fines that legal entities have to pay. When creating an individual entrepreneur, each business entity must open an account through which non-cash transactions will be carried out.

Legal entities have the opportunity to dispose of profits at their own discretion. Unlike individual entrepreneurs, persons registered as a limited liability company must wait until the moment of distribution of profits in order to benefit from the results of their activities.

The advantage of the status of an individual entrepreneur is that he has the right to use his property in a simplified manner. An individual acting as an entrepreneur and his family have the right to use all property without restrictions, even if it is involved in the implementation of commercial activities. This provision is valid until the loss of the status of an individual entrepreneur occurs.

Individual entrepreneurs have the opportunity to carry out combined activities related to entrepreneurship and other types of non-profit activities.

Individual entrepreneurs are citizens of the Russian Federation, foreign citizens and stateless persons engaged in entrepreneurial activities in accordance with the procedure established by law without forming a legal entity. This general provision on the right to entrepreneurial activity is formulated in Art. 18, 23 Civil Code of the Russian Federation.

In the literature, it has been suggested that the concepts of “entrepreneur without legal entity” and “individual entrepreneur” do not coincide. Entrepreneurial activity as an economic phenomenon can be carried out by an individual without state registration. For example, by virtue of clause 4 of Art. 23 of the Civil Code of the Russian Federation, a citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of this article does not have the right to refer to the transactions concluded by him to the fact that he is not an entrepreneur. The court may apply the rules of the Code on obligations related to business activities to such transactions.

In addition, some scientists also include so-called private practitioners (lawyers, detectives, notaries) as entrepreneurs without the formation of a legal entity. Although the current legislation does not consider notary and lawyer activities as entrepreneurial ones.

At the same time, according to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), in the context of this Code, individual entrepreneurs are understood not only as individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity, but also private notaries, private security guards, and private detectives. This formulation raises a fair question about the possibility of applying tax legislation to private practitioners without taking into account the specific nature of advocacy and notarial activities. This is precisely the question that arose in the practice of the Constitutional Court of the Russian Federation on the complaint of citizen G.Yu. Pritula, notary.

According to the Constitutional Court of the Russian Federation, the analysis of the contested provision in normative unity with other provisions of Art. 11 of the Tax Code of the Russian Federation indicates that some intersectoral concepts, including the concept of “individual entrepreneurs,” are used in a special meaning exclusively for the purposes of this Code. Moreover, in the group of subjects of tax relations, united by the generic concept of “individual entrepreneurs,” private notaries are included along with individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity. Therefore, a systematic interpretation of the contested provision allows us to conclude that the legal status of private notaries is not identified with the legal status of individual entrepreneurs as individuals carrying out business activities without forming a legal entity from the moment of state registration as an individual entrepreneur (Article 23 of the Civil Code of the Russian Federation). This is consistent with the Fundamentals of the legislation of the Russian Federation on notaries, according to which notarial activities are not entrepreneurship and do not pursue the goal of making a profit.

The following conclusion of the Constitutional Court of the Russian Federation is also interesting: the classification of private notaries as subjects of tax obligations into the same group with individual entrepreneurs follows from the peculiarities of the status characteristics of private notaries. In particular, the decisions of the Constitutional Court of the Russian Federation dated May 19, 1998 and December 23, 1999 note that the activities of notaries and lawyers engaged in private practice are special legal activities that are carried out on behalf of the state, which determines the special public legal status of notaries ( lawyers).

However, a certain similarity in the status of public legal characteristics of notaries and lawyers does not exclude, in the opinion of the Constitutional Court of the Russian Federation, the possibility of the legislator applying socially justified differentiation in the legal regulation of tax relations in relation to these categories of self-employed citizens.

Thus, the definition of individual entrepreneurs given in the Tax Code of the Russian Federation has a special terminological meaning, and those contained in paragraph 2 of Art. 11 definitional norms are intended to be used exclusively for tax purposes. Of independent regulatory significance - as a norm of direct action - para. 4 p. 2 tbsp. 11 of the Tax Code of the Russian Federation does not have. This is the general conclusion of the Constitutional Court of the Russian Federation on the complaint of a private notary.

In theoretical terms, the figure of an individual entrepreneur raises a number of fundamental questions.

Firstly, it is necessary to comprehensively evaluate the proposal to consider individuals carrying out business activities without state registration as individual entrepreneurs. Indeed, from an economic point of view, such activity is entrepreneurial, since it meets all the necessary properties.

Secondly, such activity is illegal; There is no state registration of a business entity. The legal regime of illegal entrepreneurship gives rise to various legal consequences. The Civil Code of the Russian Federation (Clause 4, Article 23) does not allow these persons to refer to the transactions they have concluded in relation to the fact that they are not entrepreneurs. Likewise, the Tax Code of the Russian Federation considers persons carrying out business activities without state registration to be taxpayers.

The legislator’s logic here is clear: on the one hand, to protect the private interests of a party in a civil transaction, on the other, the public interests of the state through the collection of a tax (fee).

In turn, administrative and criminal legislation establishes measures of legal liability for illegal entrepreneurship. Yes, Art. 171 of the Criminal Code of the Russian Federation provides for criminal liability for illegal business, i.e. carrying out business activities without registration or without a special permit (license) in cases where such a permit (license) is mandatory, or in violation of licensing conditions, if this act has caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale.

In light of the above, the following conclusions can be drawn. Entrepreneurship - as already mentioned, is an economic and legal concept. The economic nature of entrepreneurial activity is complemented by a legal form. From a legal perspective, entrepreneurship must comply with legal requirements. Otherwise, it (entrepreneurship) is illegal with all the ensuing consequences.

Therefore, when characterizing legal entrepreneurship (clause 1 of article 2 of the Civil Code of the Russian Federation), two criteria should be distinguished - objective and subjective. Using the subjective criterion, the legislator directly indicated the need for state registration of persons engaged in entrepreneurial activities. Without registration (as well as without a license), such activity is illegal. Moreover, a legal entity simply does not exist outside of state registration. There is also no figure of an individual entrepreneur without appropriate registration.

In relation to illegal entrepreneurship, in our opinion, it is correct to use the phrase “a person carrying out business activities without state registration.”

It is hardly possible to agree with the statement that the activities of private practitioners are entrepreneurial. One of the compelling arguments is the legal position of the Constitutional Court of the Russian Federation on the public legal status of lawyers and notaries.

The legal capacity of an individual entrepreneur is the next important issue. The legal capacity of an individual means to be a subject of law. There is a widespread opinion in the literature that the legal capacity of an individual entrepreneur is universal. At the same time, scientists who share this point of view refer to Art. 23 and 49 of the Civil Code of the Russian Federation. By virtue of clause 3 of Art. 23 of the Civil Code of the Russian Federation, the rules of the Code, which regulate the activities of legal entities that are commercial organizations, are accordingly applied to the entrepreneurial activities of citizens carried out without forming a legal entity, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

The question of the legal capacity of individual entrepreneurs is not simple. Firstly, if we compare legal entities with individuals (citizens), then the volume of legal capacity of collective entities is significantly less than the volume of legal capacity of individuals. Moreover, in this comparative sense, all legal entities must have special legal capacity, since they are created for the implementation of certain purposes.

Secondly, by comparing the legal capacity of legal entities, we can distinguish between universal and special legal capacity. The Civil Code of the Russian Federation (Article 49) also distinguishes between general and special legal capacity. As a general rule, commercial organizations have general legal capacity. The exception is unitary enterprises, as well as other types of organizations provided for by law.

The same conclusions can be extended to the legal capacity of individual entrepreneurs. An individual is a bearer of universal legal capacity. At the same time, individuals carrying out entrepreneurial activities without creating a legal entity are endowed with special legal capacity.

In practice, this means that an individual entrepreneur has the right to engage only in those types of activities that are indicated in the registration certificate. The certificate must indicate the full and exact name of the type of activity.

At the same time, we believe that our proposal on the special legal capacity of individual entrepreneurs does not correspond with the rules (norms) of the Civil Code of the Russian Federation and special laws. From the point of view of the Code and certain laws adopted in its development, the legal capacity of persons engaged in entrepreneurial activities without forming a legal entity is of a general (universal) nature, since it is equal to the legal capacity of commercial organizations. Thus, there is a discrepancy between doctrinal opinion and the letter of the law on the issue at hand.

The authors of the commentary to the Civil Code of the Russian Federation (edited by Prof. O.N. Sadikov) contrast the universal legal capacity of an individual entrepreneur with the special legal capacity of the head of a peasant (farm) enterprise. We believe that there is no basis for such a opposition to legal capacity.

The head of a peasant (farm) enterprise, being an individual entrepreneur, has general legal capacity. This conclusion is confirmed by certain provisions of the Federal Law of June 11, 2003 No. 74-FZ “On Peasant (Farming) Economy”. In our opinion, it is necessary to distinguish between the status of the head of a peasant (farm) enterprise and the status of an individual entrepreneur. Article 17 of the said Law lists the powers of the head of the farm, in particular, he organizes the activities of the farm; acts on behalf of the farm without a power of attorney, including representing its interests and making transactions; issues powers of attorney; carries out the hiring of workers in the farm and their dismissal; organizes accounting and reporting of the farm; exercises other powers determined by agreement between members of the farm. In other words, the head of a peasant (farm) enterprise is a body of the farm enterprise, which is not endowed with the right of a legal entity. On the other hand, the head of a peasant (farm) enterprise is an individual entrepreneur, and therefore he carries out any type of entrepreneurial activity based on the goals of establishing the enterprise. In this capacity, the head of the household does not conduct his own individual entrepreneurial activity, separate from other members of the household. His activities (as well as the activities of the members of the farm) are subordinated to the general goal of forming the farm.

This conclusion can be reached through an analysis of the relevant norms of current legislation. But in theoretical terms, we again repeat the thesis: the legal capacity of individual entrepreneurs should be special, taking into account the nature of the activity. The scope of the rights and obligations of an individual entrepreneur does not affect the determination of the type of legal capacity. Likewise, it does not affect the establishment of the type of legal capacity and cases of its limitation.

The legal capacity of an individual entrepreneur may be limited in cases and in the manner established by federal law. By virtue of clause 3 of Art. 55 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen may be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, and ensure the defense and security of the state. The Civil Code of the Russian Federation (clause 2 of article 1) states that civil rights can be limited on the basis of federal law. Comparing the norms of the Constitution of the Russian Federation (clause 3 of Article 55) and the Civil Code of the Russian Federation (clause 2 of Article 1), one can indeed come to the conclusion that the scope of civil rights of subjects from the point of view of the Code can be limited by other normative legal acts.

The Supreme Arbitration Court of the Russian Federation tried to eliminate this textual contradiction, pointing out that “since, according to Article 55 of the Constitution of the Russian Federation and paragraph 2 of Article 1 of the Civil Code of the Russian Federation, civil rights can be limited only on the basis of federal law, it should be kept in mind “that other regulations issued after the entry into force of part one of the Civil Code of the Russian Federation and limiting the rights of the owner are not subject to application.” It is noted in the literature that it is incorrect to eliminate such a contradiction in the resolution of the Supreme Arbitration Court of the Russian Federation. There are other ways and methods of elimination.

An individual is recognized as an individual entrepreneur if he is fully capable (Article 21 of the Civil Code of the Russian Federation). Minors aged 16 to 18 years can engage in entrepreneurial activity only with the consent of their parents, adoptive parents or trustees (Clause 1 of Article 27 of the Civil Code of the Russian Federation). Upon reaching 16 years of age, minors also have the right to be members of cooperatives in accordance with the laws on cooperatives (Article 26 of the Civil Code of the Russian Federation).

From a theoretical and practical perspective, the question of the possibility of adult citizens limited in legal capacity due to alcohol and drug abuse to engage in entrepreneurial activity seems interesting. By virtue of Art. 30 of the Civil Code of the Russian Federation, restriction of legal capacity should be understood as deprivation by the court of a citizen of the right to carry out the following actions without the consent of the trustee:

Sell, donate, bequeath, exchange, buy property, as well as make other transactions for the disposal of property, with the exception of small household transactions;

Directly receive wages, pensions and other types of income (author's fees, remuneration for discoveries, inventions, etc.). Any other restrictions on the legal capacity of a citizen, Art. 30 of the Civil Code of the Russian Federation does not contain, i.e. civil legislation does not prohibit these persons from engaging in entrepreneurial activities. Moreover, the consent of the trustee is not required here.

Individuals carrying out entrepreneurial activities without forming a legal entity have the right to use hired labor. The previously in force Law of the RSFSR “On Enterprises and Entrepreneurial Activities” (clause 3 of Article 2) prohibited individual entrepreneurs from using hired labor.

Individual entrepreneurs have the right to engage in any type of activity, except for those prohibited by law. Engagement in certain types of activities requires the entrepreneur to have a special permit (license) or a qualified certificate. The list of these species should be determined only by law (Clause 1, Article 49 of the Civil Code of the Russian Federation). The Federal Law “On Licensing of Certain Types of Activities” is currently in force, which regulates the relations arising between federal executive authorities, executive authorities of constituent entities of the Russian Federation, legal entities and individual entrepreneurs in connection with the licensing of certain types of activities in accordance with the list provided for in paragraph. 1 tbsp. 17 of this Law. This Law does not apply to the types of activities listed in Art. 2 of the Licensing Law. Licensing of these types of activities is carried out in accordance with special laws.

In the literature, licensing is considered not only as a type of authoritative public activity. Licensing is a method (method) of state regulation of business activities.

The public legal assessment of licensing is not affected by the rule of paragraph 1 of Art. 49 of the Civil Code of the Russian Federation. It is unlikely that under the influence of civil law, relations in the field of licensing can acquire a civilistic connotation. The issuance of a license (special permit) is a legal fact on the basis of which various types of legal relations arise, including administrative and civil ones.

It should be noted that individual entrepreneurs, including heads of peasant (farm) households, have some advantages over other organizational and legal forms of entrepreneurship. Let's start with paying taxes and fees. Individual entrepreneurs pay income tax in the manner and amount determined by the Tax Code of the Russian Federation for individuals (citizens). For this group of taxpayers, a single tax rate is established - 13%. Features of calculating tax amounts by individual entrepreneurs and other persons engaged in private practice are provided for in Art. 227 Tax Code of the Russian Federation. These rules differ significantly from the provisions of the Code on corporate income tax.

In the field of individual entrepreneurship, a simplified system of taxation, accounting and reporting is used. It (the system) is used for small businesses - organizations and individual entrepreneurs.

In accordance with paragraph 1 of Art. 861 of the Civil Code of the Russian Federation, settlements with the participation of citizens not related to their business activities can be made in cash (Article 140) without limiting the amount or by bank transfer. In turn, payments between legal entities, as well as with the participation of citizens, related to the implementation of their business activities, are made by bank transfer, unless otherwise provided by law. However, at present there are no restrictions or prohibitions on making payments with the participation of citizen-entrepreneurs in cash. The Bank of Russia has established a maximum amount for cash settlements in the Russian Federation between legal entities under one transaction (the specified amount changes).

Collection of property and funds from the accounts of individual entrepreneurs is carried out only in court.

There are other advantages and benefits that make the individual form of entrepreneurship very attractive for use in business. Therefore, the opinion of some scientists and practitioners about the abolition of the individual form of entrepreneurship can hardly be considered convincing.

Entrepreneurial activity of a citizen is an independent activity carried out directly by a citizen registered as an individual entrepreneur in the manner prescribed by law, at his own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services without forming a legal entity for these purposes.

To acquire the status of an individual entrepreneur, a citizen must have the following characteristics of a subject of civil law:

1. legal capacity (the ability to have civil rights and bear responsibilities);
2. civil capacity (the ability to have civil rights and bear responsibilities);
3. have a name (surname, first name, as well as patronymic, unless otherwise follows from the law or national custom);
4. have a place of residence (the place where the citizen lives permanently or primarily).

The right of a citizen to engage in entrepreneurial activity is guaranteed by the Constitution of the Russian Federation, according to which everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34). In Russia, which has carried out market transformations, individual entrepreneurship has become a common form of socially useful activity of citizens. “According to statistics (for 2003), about 5 million Russians are engaged in individual entrepreneurial activity, which is about 17% of the country’s economically active population. The presence of certain economic advantages (tax, accounting, labor, etc.) in individual entrepreneurship in comparison with other organizational and legal forms of entrepreneurial activity provides the real commercial meaning of running a small business in this form.” Entrepreneurial activity without forming a legal entity, along with small enterprises, has the status of a small business entity, which is subject to state support measures and taxation features established by law (Clause 1, Article 3 of the Law on State Support of Small Business).

An individual entrepreneur is recognized as a capable citizen who independently, at his own risk and under his personal property responsibility, carries out business activities and is registered for these purposes in the prescribed manner.

Thus, the necessary conditions for a citizen to engage in entrepreneurial activity are: his legal capacity and state registration as an individual entrepreneur.

Since a citizen’s full legal capacity occurs when he reaches 18 years of age (Article 21 of the Civil Code of the Russian Federation), it is from this age that he acquires the right to engage in independent entrepreneurial activity, provided that he is not limited in legal capacity in accordance with the law. Citizens limited in legal capacity due to health reasons (Article 29 of the Civil Code of the Russian Federation) or due to abuse of alcoholic beverages or drugs (Article 30 of the Civil Code of the Russian Federation) have the right to engage in business with the consent of the trustee. Persons who, on the grounds provided for by law, are recognized as fully capable before reaching the age of 18 (married - Part 2 of Article 21 of the Civil Code of the Russian Federation or emancipated - Article 27 of the Civil Code of the Russian Federation), have the right to engage in independent entrepreneurial activity from the moment they acquire full legal capacity, with the exception of certain types of it, for which an age limit is established (for example, activities related to weapons).

Emancipation - a relatively new institution for Russian legislation is that a minor who has reached the age of 16, if he works under an employment contract, including a contract, or with the consent of his parents (adoptive parents or guardian) is engaged in entrepreneurial activity, is declared fully capable if consent of both parents (adoptive parents, trustee) by decision of the guardianship and trusteeship authority, and in the absence of such consent - by court decision (Article 27 of the Civil Code of the Russian Federation).

The entry into marriage of a minor citizen (in cases where this is permitted by law), as well as the engagement in entrepreneurial and labor activities, indicates his sufficient independence and corresponds to a full civil legal status.

According to paragraph 16 of the resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8, an emancipated minor has full civil rights and bears responsibilities (including being independently responsible for obligations arising as a result of causing harm to them), with the exception of those rights and obligations for the acquisition of which an age limit is established by federal law.

A citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur (Article 23 of the Civil Code of the Russian Federation). It should be noted that the Law on Support of Small Business, which determines that in order to obtain the status of a small business entity, special registration with executive authorities is required (Article 4), in this part has not been applied since its adoption. Individual entrepreneurs acquire the status of small businesses simultaneously with the acquisition of the status of a business entity - from the moment of state registration.

The legal status of an individual entrepreneur is determined based on the fact that, along with commercial organizations, he is a full participant in economic turnover. The legal capacity of an individual entrepreneur is practically equal to the legal capacity of commercial organizations. Individual entrepreneurs have the right to engage in any type of activity not prohibited by law, and when carrying out business activities that require licensing, if they have a license. The procedure for licensing the business activities of individual entrepreneurs, as well as legal entities, is established by the Licensing Law and does not contain any specifics determined by the organizational form. Obviously, this approach is correct, since it is not the person who is subject to licensing, but the type of business activity.

Entrepreneurs without the formation of a legal entity have the right to enter into any business agreements, with the exception of those agreements in respect of which exceptions are directly provided for by law. Persons engaged in individual entrepreneurship can be participants in general partnerships, as well as enter into agreements on joint activities (simple partnerships).

The legal norms regulating the activities of commercial organizations are applied to entrepreneurial activities of citizens carried out without forming a legal entity, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

In this regard, the question of the possibility of entrepreneurs operating without forming a legal entity to unite in associations (unions) to represent and protect common property interests and coordinate business activities is interesting. As follows from paragraph 1 of Article 121 of the Civil Code of the Russian Federation and Article 11 of the Law on Non-Profit Organizations, only commercial organizations can create non-profit organizations in the form of associations (unions) to achieve the above goals. Based on a direct reading of the above norms, registration authorities began to deny individual entrepreneurs the right to form associations (unions). Refusal to register associations (unions) created with the participation of entrepreneurs operating without forming a legal entity is, in our opinion, unlawful. This position has been confirmed in judicial practice. The norms of paragraph 1 of Article 121 of the Civil Code of the Russian Federation and Article 11 of the Law on Non-Profit Organizations should be considered in conjunction with the legal norms contained in the Civil Code and other laws, including the provisions of Article 23 of the Civil Code of the Russian Federation, which establishes that the entrepreneurial activities of citizens carried out without forming a legal entity, the rules of the Civil Code apply, which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship. This position is consistent with the Law on Support of Small Business, according to Articles 19 and 20 of which small businesses can unite into associations (unions) and create other non-profit associations.

By establishing rules governing the activities of commercial organizations in relation to individual entrepreneurs, the legislator places them on equal terms with legal entities, including from the point of view of protecting violated rights and imposing liability on them in connection with the implementation of business activities.

Individual entrepreneurs are liable for their obligations with all their property, which can be levied, in contrast to citizens who have created a commercial organization, since the essence of the design of a legal entity is to separate its property from the property of the participants and limit the risk of their liability to the amount of their contribution. This means that collection of debts of an individual entrepreneur can be imposed both on his personal property and on shares in common property that do not take part in economic turnover.

The activities of an individual entrepreneur can be carried out using hired labor.

The question of the maximum number of employees who can work for an individual entrepreneur is of interest. There is no legislative limitation on the number of employees that an entrepreneur operating without forming a legal entity has the right to attract. But it is logical to assume that the number of employees of an individual entrepreneur should not exceed the number of employees, which allows the organization to be classified as a small business entity (see paragraph 1 of Article 3 of the Law on Support of Small Business), otherwise individual entrepreneurs and small enterprises could find themselves in unequal legal conditions if they have a single status as a small business entity.

The specifics of the legal status of an individual entrepreneur are determined by the specifics of taxation of entrepreneurial activities carried out without forming a legal entity. In relation to individual entrepreneurs, as well as for small enterprises that are small businesses, special tax regimes have been established: (1) a simplified taxation system (Chapter 26.2 of the Tax Code of the Russian Federation) and (2) a taxation system in the form of a single tax on imputed income for certain types activities (Chapter 26.3 of the Tax Code of the Russian Federation). When applying special tax regimes to individual entrepreneurs, it is envisaged to replace the payment of taxes directly specified in the Tax Code: tax on personal income received from entrepreneurial activities, value added tax, sales tax, tax on property used for entrepreneurial activities, a single social tax on income received from business activities - by paying, respectively, a single tax calculated according to the simplified taxation system, or a single tax on imputed income.

An individual entrepreneur is also, according to clause 2 of Article 23 of the Civil Code of the Russian Federation, the head of a peasant (farm) enterprise operating without forming a legal entity. The status of an individual entrepreneur is acquired in this case from the moment of state registration of the peasant (farm) enterprise. Legal regulation of peasant (farm) farming is carried out by the RSFSR Law “On Peasant (Farming) Farming”, most of the provisions of which are currently not applied due to the fact that they conflict with the norms of the Civil Code and other legislative acts. Suffice it to say that according to the Law “On Peasant (Farm) Farming,” such a farm has the status of a legal entity. The law allows the creation of not only family peasant farms, but also farms formed by a “group of persons”, which led to the fact that as a result of transformations in the countryside, farms were formed, the members of which were not related by family relations, but were, for example, part of brigades reorganized agricultural organization.

With the adoption of the Civil Code of the Russian Federation in practice, in the literature and even in the interpretation of the Constitutional Court of the Russian Federation, the point of view regarding the understanding of a peasant (farm) economy only as the individual entrepreneurial activity of its head became widespread. The position of those scientists and specialists who oppose the prevailing idea is of interest.

“Given the ambiguity of our assessment of the concept of “aggregate entrepreneur,” it is difficult not to agree that the implementation of activities by a peasant (farm) enterprise differs from individual entrepreneurship. Thus, a peasant farm is distinguished from individual entrepreneurial activity by the membership relations present in it. The head of the household does not conduct his own individual entrepreneurial activity, separate from other members of the household.”

It should be noted that the relevance of improving the legal regulation of peasant (farm) farms is significantly increasing due to the adoption of the Federal Law of July 24, 2002 N 101-FZ “On the turnover of agricultural land”. The significant specificity of the legal status of the head of a peasant (farm) enterprise in comparison with an individual entrepreneur requires further scientific research.

Individual entrepreneur (IP)- registered in accordance with the procedure established by law and carrying out entrepreneurial activities without forming a legal entity.

Individual entrepreneur status

To acquire the status of an individual entrepreneur, a citizen must have the following general characteristics of a subject of civil law:

Legal capacity (the ability to have civil rights and bear responsibilities);

Legal capacity (the ability to acquire and exercise civil rights through one’s actions). Only capable citizens can carry out entrepreneurial activities, that is, those who are able to independently perform legal actions, enter into transactions and execute them, acquire property and own, use and dispose of it. As a general rule, civil capacity arises in full from the onset of adulthood (on reaching 18 years of age);

Have a place of residence (the place where the citizen lives permanently or primarily).

The status of an individual entrepreneur is acquired as a result of state registration of a citizen as an individual entrepreneur.

Registration of an individual entrepreneur

A citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur, and state registration can only be carried out at the place of his official permanent registration at the place of residence.

To register an entrepreneur, you must prepare the following documents:

a copy of your passport and certificate with TIN number;

receipt of payment of the duty;

application for registration of individual entrepreneurs of a certain type in two copies.

Basic rights and obligations of an individual entrepreneur

Citizens registered as individual entrepreneurs have rights and responsibilities.

IP rights:

Possibility of choosing types of activities permitted by law.

The right to hire workers.

Freedom to choose partners and products. The entrepreneur himself determines the market segment in which he will develop his business.

The right to independently determine the cost of goods and services offered.

The individual entrepreneur decides how and how much to pay his employees.

The entrepreneur has the right to dispose of the profit received as he pleases.

An individual entrepreneur has the right to act in court as a plaintiff and defendant.

An individual entrepreneur is a commercial entity that also has certain responsibilities. Namely:

All individual entrepreneurs are required to adhere to the current legislation.

All monetary transactions are documented. Such documents include a contract for the supply of goods, etc.

To carry out licensed types of business, an entrepreneur must obtain state permission - a certificate, patent or license.

All employees who are hired by an individual entrepreneur must be officially registered. That is, an individual entrepreneur enters into an employment contract, an agreement to perform specific work, or other agreements with a person. After completing the documents, the entrepreneur is obliged to make the necessary contributions to the Health Insurance Fund, Pension Fund and Social Insurance Fund.

If the activities of an individual entrepreneur cause harm to the environment, he is obliged to take measures to reduce negative impacts. If a businessman cannot resolve this issue on his own, he should contact the environmental service.

An entrepreneur is obliged to pay taxes to the state treasury on time.

An individual entrepreneur is a participant in market relations who must always respect the rights of the buyer.

If, for some reason, an individual entrepreneur’s data has changed (last name, place of registration or residence, type of activity), he is obliged to notify the relevant authorities about this - the tax office, funds and other institutions.

Taxes and fees for individual entrepreneurs

Individual entrepreneurs are required to pay a fixed payment to social funds, regardless of income.

There are four taxation systems:

Regular taxation system (OSNO);

Simplified taxation system (USNO);

Unified tax on imputed income (UTII);

Patent taxation system (PTS).

Advantages and disadvantages of individual entrepreneur status

Individual entrepreneur status has the following advantages compared to registering your own enterprise:

simplification of the processes of creating and liquidating a business;

free use of own earnings;

Individual entrepreneur (IP): details for an accountant

Article 23 of the Civil Code determines that any citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur. The head of a peasant (farm) enterprise is recognized as an entrepreneur from the moment of state registration of the peasant (farm) enterprise. On the territory of the Russian Federation, foreigners and stateless persons can also engage in entrepreneurial activity without forming a legal entity.

A person who has reached the age of 18 (has become fully capable) can engage in entrepreneurial activity. However, persons who have reached the age of 16 can be recognized as fully capable with the consent of their parents or by a court decision (emancipation) and engage in entrepreneurial activity without waiting for the age of majority.

It is prohibited to engage in such activities for persons deprived of this right by a court decision, state and municipal employees, and those incapacitated.

In accordance with Article 11 of Part 1 of the Tax Code of the Russian Federation, individual entrepreneurs are individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity, as well as heads of peasant (farm) farms. At the same time, individuals who, in violation of the requirements of the law, have not registered as individual entrepreneurs and are conducting business activities, will be considered individual entrepreneurs in tax legal relations, i.e. they do not have the right to refer to the fact that they are not registered as individual entrepreneurs in the event of disputes with the tax authorities.

The status of an individual entrepreneur is dual. On the one hand, the entrepreneur is subject to the rules governing the legal status of a citizen (individual). On the other hand, engaging in entrepreneurial activity brings the individual entrepreneur closer in status to a legal entity. Thus, to the entrepreneurial activities of citizens carried out without forming a legal entity, the norms of the Civil Code are respectively applied, which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

However, in general, the differences between legal entities and individual entrepreneurs are significant, especially in terms of property. Since an individual entrepreneur is an individual, all property belongs to him personally and when conducting business activities, the legislation is not divided into household property and business property. Accordingly, no one can ask the individual entrepreneur where he got the equipment he works on. But at the same time, if the founders of an LLC are liable for the debts of their organization only in the amount of their share in the authorized capital, then the individual entrepreneur is liable for business debts with all of his property (except for a short list of property that cannot be foreclosed on).

In tax legislation, the difference between organizations and individual entrepreneurs is even more significant. Despite the fact that organizations and individual entrepreneurs have general taxes (USN, UTII, Unified Agricultural Tax, Mineral Tax, VAT, etc.), some of the taxes an individual entrepreneur pays as an ordinary individual and he does not have, for example, corporate income tax (individual pay tax on the income of individuals), tax on property of organizations (individuals pay tax on property of individuals, and only on real estate), transport tax, individual entrepreneurs also pay as individuals, according to notifications sent from the tax office. Individual entrepreneurs also have a special tax regime that only individual entrepreneurs can use - the patent tax system (PTS).

Because If an individual entrepreneur has all his property personal, he does not have a problem with how to put money “in his pocket.” Unlike a commercial organization, where the founders, in order to receive money from the created organization, need to distribute profits and pay personal income tax on dividends, an individual entrepreneur already has all the money he earns, and when transferring business proceeds into his pocket, he does not have to pay additional taxes other than those already paid by him as an individual entrepreneur from business income.