What article is illegal business? Illegal commercial activity: elements and types of crime under the Criminal Code of the Russian Federation

• administrative (penalties here range from 500 rubles and reach 2000);
• criminal (isolation from society for a certain period, monetary payments from the income of the perpetrator, arrest, compulsory labor);
• tax (if violations are detected, mandatory payments of 10% of the amounts received are provided, but not more than 20,000 rubles, as well as 20% if the business has been operating for more than three months).

Law enforcement agencies

The following authorized government agencies can identify the implementation of a business that is not registered in accordance with the established procedure:

• police;
• tax office;
• prosecutor's office;
• antimonopoly service;
• trade inspection.

The fact of violation of the law must be recorded by the inspection authorities in the protocol. In addition, no more than two months must pass from the moment such an offense as illegal business activity is identified and suppressed. An individual in this situation can only be punished by a court decision.

Illegal business as a criminal act

In this case, a person may be under Art. 171 of the Code of Crimes. It occurs only if law enforcement agencies reveal that a person has received income on a large scale, i.e. not less than 250,000 rubles. At the same time, it is quite difficult for the police to convict a person of illegal business, because this requires a test purchase for large sums of money, which is quite problematic. That is why, without sufficient evidence to open a case, they will not initiate it.

Criminal liability arises for special damage in the amount of 250,000 or more, and only after that commerce is defined as illegal business activity. An individual (2016) is punished as follows:

• a fine in the amount of up to 300,000 rubles or from the income of the perpetrator for a period of up to 2 years;
• compulsory work;
• arrest.

If commercial activity carried out outside the law entailed causing damage on a very large scale, then penalties here range from 100,000 rubles and reach 500,000. In addition, the guilty person may be sentenced to isolation from society for up to five years. years, but with the smallest cash payments.

These are the consequences that (RF) ends with. Therefore, it is best for citizens engaged in commercial activities that bring them a permanent income to register with the tax office at their place of residence as an individual entrepreneur and pay business contributions to the state.

Responsibility under the Code of Administrative Offenses

Provides a fine of 500 rubles and up to 2000 for illegal business activities. The case of bringing to administrative liability is considered by a magistrate. This can happen at the place where the offense was committed or on the territory of the citizen’s residence, if he reports it. When a fine is imposed, its size will depend on whether the person has committed an offense for the first time or has already been prosecuted for conducting illegal business.

There are several types of offenses in the Code of Administrative Offenses:

• working without a license and violating the rules of its use;
• commercial activity without tax registration.

Of course, the size of the fine will depend on the specific case. Operating without special permission may be a more serious violation of the law than operating without registration. That is why fines are always imposed by the court when studying and considering the specific circumstances of the case. Law enforcement agencies, trade inspection and antimonopoly service can only identify such an offense as illegal business activity. The Code of Administrative Offenses envisages punishment for an individual in the form of a fine, which will be paid by the person only on the basis of a court decision.

Sanctions

If a person is engaged in business and has not registered in the prescribed manner as an individual entrepreneur, then the tax authorities consider this as illegal business activity. An individual will be punished (2016) in the form of a fine in the amount of 20,000 to 40,000 rubles. If we consider it as a percentage, then this is from 10 to 20% of all income. In case of failure to comply with the deadlines for registration with the inspectorate, an unscrupulous businessman faces a fine of 5,000 to 10,000 rubles.

Protection

If a citizen has suffered material damage from running a business that is outside the law, he can personally contact the law enforcement agencies so that the violator is held accountable. First of all, the tax inspectorate is interested in ensuring that there are as few illegal traders as possible. As is already known, the Tax Code of the Russian Federation provides for liability in the form of payment of considerable fines for illegal entrepreneurs who have been carrying out their business for a long time without certain documents.

Illegal business activities of an individual are always aimed at obtaining permanent profits from the provision of services or the sale of goods. Such a business is not properly registered with the tax office. This entails unpleasant consequences in the form of fines and, in special cases, imprisonment for the guilty person. Therefore, citizens who encounter illegal commerce must report this to law enforcement agencies in order to protect themselves and their loved ones from purchasing low-quality items, products and services.

Registration

In order for the activities of an individual aimed at obtaining a permanent profit to be completely legal, he needs to register with the tax office at his place of residence as an individual entrepreneur. To do this, you must provide the following documents:

• written statement;
• check for payment of state duty;
• passport;
• TIN and its photocopy.

The person also needs to decide on the taxation system. This must be done in order to make paying business fees easier and in a smaller amount. If all documents are collected and submitted to the inspectorate, then issuing an individual entrepreneur certificate will take only a few days. It is necessary for a citizen to perform these actions in order not to pay a fine in the future for illegal business activities, as well as to save his time and money.

Varieties

Not every activity for which citizens pay money can be considered entrepreneurial. A person can receive income from:

• use of your property (this could be renting out housing or transport for a day);
• sales of things - products, household appliances, furniture;
• provision of services - hairdressing, massage, cosmetics.

Even if a woman did her friend’s hair and received money from her for it, she is not obliged to immediately go to the tax office and register as an individual entrepreneur. Now, if this is her permanent occupation, bringing in a stable income, then in this situation she will need to register. Otherwise, such a business is an illegal entrepreneurial activity, the punishment for which can amount to several thousand rubles.

Arbitrage practice

It can be quite difficult and not always possible for law enforcement agencies to identify unregistered businessmen. But sometimes in practice there are situations when buyers who have received a low-quality product themselves come to the police or tax service.

Example from the case materials:

The citizen asked her friend to help her make beautiful and modern renovations in the kitchen and bathroom. The latter agreed because she is a professional plasterer-painter and receives a good income for such “shows”, although she does not officially work anywhere and is not registered as an individual entrepreneur.

After the woman completed her job, the customer asked her to whitewash the ceiling again because it was not white and clean enough. The citizen did not agree, took the money and left. The customer applied to the tax office with a request to hold the latter accountable for an unregistered business and provided evidence that apartment renovation was the main income of her friend.

The tax inspectorate drew up a protocol, on the basis of which the court decided to hold the citizen accountable, which entails a fine for an individual for illegal business activities. In addition, the violator had to register as an individual entrepreneur within five days.

In this example, it is clear that the woman was simply carrying out illegal commercial activities using her own work skills and abilities. But she did not want to pay taxes to the state, so she was fined by the court for illegal actions.

If a citizen constantly carried out poor-quality repairs in residential premises, as well as organizations and enterprises, where the amount of income was considered impressive and reached, for example, 300 thousand rubles, then the culprit could be held accountable for such a criminal act as illegal entrepreneurial activity Art. . 171 CC.

Today, more and more people are starting to engage in some kind of business, large or small. Before starting your own production or providing services, you must register with the tax service as a legal entity or individual entrepreneur.

However, not everyone, wanting to benefit from their own business, goes through this procedure. Consequently, here we are talking about illegal business, for which the owner bears both administrative and criminal liability.

About the law

The Criminal Code deals with running a business without registration or without a license. Thus, if an entrepreneur is already a tax agent, but conducts activities without special permission, this is also punishable to the fullest extent of the law (Article 171 of the Criminal Code of the Russian Federation).

Where a license is required is indicated in a special law adopted in this regard. For example, special permission is required when conducting banking activities, when trading in fuels and lubricants and other similar forms of doing business. This is necessary in order to protect the market from unscrupulous businessmen, since licensed activities imply special control over the actions of these enterprises.

Violations

Thus, if a citizen decides to start a business (an activity that involves the systematic receipt of any income), then he needs to register with the tax office at the location of the enterprise and/or obtain a license.

If it is revealed that neither one nor the other exists, the activity falls under the description contained in Article 171 of the Criminal Code of the Russian Federation - illegal entrepreneurship. Depending on how many people were involved and how much profit the businessman has already made, a sentence is passed.

Crime and punishment: Article 171, Part 1 of the Criminal Code of the Russian Federation

Part 1 of this provision states that if the activities of such a company entailed large-scale damage or are associated with the receipt of income in such an amount, then the following types of penalties may be applied:

— fine up to 300 thousand rubles;

— compulsory work up to 480 hours;

- arrest for up to 6 months.

Part 2

In addition, it also provides for a crime committed by several persons according to a pre-developed plan or without it, but with the infliction of especially large damage. The penalties for this type of activity are as follows:

— fine up to 500 thousand rubles;

— imprisonment for up to 5 years with a fine of up to 80 thousand rubles.

These sanctions are contained in Article 171, Part 2 of the Criminal Code of the Russian Federation.

Amendments

It can be noted here that any activity that is related to obtaining a permanent income, even if the guilty person managed to make only one transaction, is illegal. However, Article 171 of the Criminal Code of the Russian Federation in the new edition provided that if the act was committed for the first time, the citizen has no criminal record and compensated for all the damage caused or voluntarily turned over the income in favor of the state.

The changes affected several articles, but as far as exemption is concerned, it is provided for simple crimes, without aggravating circumstances (as in Article 171, Part 1 of the Criminal Code of the Russian Federation).

Regarding the amount of damage or profit made, we can say that the amount that the entrepreneur received is subject to control. This includes the expenses incurred by the businessman to organize his business.

For example, if the owner of a gas station raised a certain amount, and then purchased fuel and paid salaries to employees, then the amount of finance before expense transactions is taken into account.

Food

In addition to the crimes themselves, which are provided for in Article 171 of the Criminal Code of the Russian Federation (illegal entrepreneurship), particularly “advanced” businessmen do not stop there. That is, there is another type of illegal business, when an organization is registered or even has a license, but there are problems with the product.

Article 171.1 of the Criminal Code of the Russian Federation directly states that if a legal entity or individual (it doesn’t matter) transports, buys or accepts, as well as stores or sells goods without marking, this is considered a crime.

Just as some types of activities are subject to licensing, many consumer goods are subject to certification and special labeling.

The circulation of food, alcohol and tobacco products is discussed separately in Article 171.1, parts 3-6.

If a businessman circulates products without mandatory information on the product itself or does not apply labeling, the punishment will be of the following types:

1. Large size:

— fine up to 400 thousand rubles;

— forced labor activity for up to 3 years;

— term in a correctional institution for up to 3 years plus a fine of up to 80 thousand rubles;

2. Extra large size:

— fine up to 700 thousand rubles;

— forced labor for up to 5 years;

— serving a preventive measure in a colony for up to 6 years with a fine of up to 1 million rubles.

At the same time, in the code, in the notes to Article 171.1, the designations of sizes in monetary terms are indicated in parts. For the 3rd and 4th parts, large - 250 thousand rubles, especially large - 1 million rubles.

Special products

With regard to alcohol and cigarettes, the legislator has provided for punishment for the circulation of such goods without special marking in the form of excise stamps. In this case, a large size will be a volume of 100 thousand rubles, and a particularly large one will be 1 million rubles.

If an entrepreneur, knowing about the need to label the products of distilleries and tobacco factories in this way, does not do this, he faces punishment:

— fine up to 500 thousand rubles. (800 thousand rubles for a particularly large size);

— forced labor for up to 3 years (up to 6 years, respectively);

- colony, term - up to 3 years with a fine of up to 120 thousand rubles. (6 years and 1 million for a particularly large amount).

Gambling business

Every person strives to earn money. Some people go to work, while others engage in illegal activities with the prospect of receiving huge profits.

In connection with the law banning gambling organizations in many countries, including Russia, not very honest businessmen continued their activities underground or created new places for such entertainment. It is no secret that the income from this type of business is very significant, although it itself is quite risky.

Along with the ban, an article appeared that provides for certain punishment for carrying out such illegal activities - 171.2. This provision addresses the violation in more detail than Article 171 of the Criminal Code of the Russian Federation. The elements of the crime are almost the same; the specific type of activity is important here.

The disposition (description of the act) states that it is criminal if it is based on the organization and/or implementation of gambling. It is noted that the games can be held using special equipment, the Internet or through the use of any type of communication. If a businessman organized such entertainment in a permitted gaming area, but did not obtain a license for this, then he also bears criminal liability.

When considering such cases, one could say that the actions of an entrepreneur fall within the description contained in Article 171, Part 1 of the Criminal Code of the Russian Federation, but the legislator specifically identified this activity as a separate provision.

Sanctions

The punishment under 172.1 is not much, but more:

— fine up to 500 thousand rubles;

— compulsory labor up to 240 hours;

- restriction of freedom for up to 4 years, imprisonment for up to 2 years.

Considering there are only two, not everyone can afford to gamble. One zone is located in the Krasnodar Territory (“Azov City”), the second in Altai (“Siberian Coin”).

Punishment for resilient groups and officials

When a crime is committed by several persons in conspiracy or an entrepreneur has single-handedly made a profit on a fairly large scale, Article 171.2 of the Criminal Code of the Russian Federation, Part 2, provides for the following sanctions:

— fine up to 1 million rubles;

- actual term in a correctional institution is up to 4 years with a fine of up to 500 thousand rubles.

If there are special conditions that qualify the use of official position or a very large size), punishment is provided in the form of a fine of up to 1.5 million rubles, as well as serving a term in prison for up to 6 years with a fine of up to 1 million rubles.

In addition, if the act was committed by a person who has a high (or not very) position, the perpetrator may be prohibited from further engaging in his activities and occupying the corresponding position for up to 5 years. This part of the punishment is implemented together with imprisonment and a fine, although sanctions can simply be in the form of imprisonment in a colony. It should be noted that Article 171 of the Criminal Code of the Russian Federation does not contain such details.

Thus, with regard to entrepreneurs who carry out illegal business (without registration or without a permit for certain types of activities), there are several articles in which the activity itself is divided by type of product or commodity.

For example, Article 172 of the Criminal Code of the Russian Federation specifically speaks about punishment for illegal banking activities, and Article 222 - for arms trafficking committed by a group of persons (in parts 2 and 3).

Registration

In some cases, we can talk about the illegal formation (creation) of a legal entity. Only such registration will be considered illegal and punishable if forged documents or dummies were used.

In this case, even if the company carries out legal activities, violation of registration rules entails punishment under Article 173.1 of the Criminal Code of the Russian Federation.

Compound

As with any crime, the act provided for in Article 171 of the Criminal Code of the Russian Federation must also have elements, otherwise the actions will not constitute illegal activity.

Considering illegal entrepreneurship from the point of view of the theory of criminal law, it can be noted that the composition is alternative, material and formal and has qualifying and specially qualifying features, which are fully described by Article 171 of the Criminal Code of the Russian Federation.

Investigation methodology

Identification of these crimes consists of finding signs that will allow us to say that the entrepreneur’s activities are carried out illegally.

There are also some nuances here. The investigator must find out exactly what facts should be taken into account and when a business can still be considered illegal. In addition, the profit made in the process of illegal business is also important.

If this is a large amount (including property), from 1.5 million rubles, the crime is qualified under Part 1 of Article 171, if in a particularly large amount (from 6 million rubles), Article 171 is applied. , Part 2 of the Criminal Code of the Russian Federation.

First, you need to decide, in general, under which article to qualify the crime, and only then collect evidence based on the content of the indictment.

For example, if an entrepreneur is registered with the tax authority and has a permit for any type of activity, but in fact the businessman makes transactions of a related or similar type, then this should be equated to doing business without a license.

Why is this happening? This is due to the fact that each activity has its own rules and requirements, starting from personnel and ending with the building where the enterprise will be located. Therefore, in order to avoid problems with the law when carrying out several related types of work (services, production), you need to obtain a license for each.

In addition, if such a permit already exists, but the validity period has expired and the entrepreneur continues to engage in this work, this is also considered a violation (Article 171 of the Criminal Code of the Russian Federation with comments).

Features of crimes

It is definitely worth noting the position of the Supreme Court in relation to entrepreneurs with a license from another entity. According to the Federal Law “On Licensing...” the validity of the permit is not fixed territorially, that is, you can organize a business in one region and obtain a license in another (if, for example, there are branches throughout the country).

However, if any region has adopted a regulatory act that contradicts the laws of the Federation or is not within the competence of these bodies, and a businessman, relying on this act, received a license, he bears neither criminal nor administrative liability.

Often, along with the classification of the crime described by Article 171 of the Criminal Code of the Russian Federation, judicial practice designates several other forms of illegal acts, such as (Article 174), use of someone else’s trademark (Article 180) and the like.

Difficulties in qualification

The decision of the Supreme Court, which was published on November 17, 2004, on practice related to cases of illegal entrepreneurship, indicates all the difficulties and aspects of qualification and imposition of punishments. So, according to the document, the following difficulties occur:

— definition of the subject;

— differentiation of adjacent trains;

- the concept of income - the difference between a one-time transaction and entrepreneurship itself.

Regarding income, it has already been said above that such should be understood as all money received, taking into account expenses incurred. If several persons were involved in the case, then the income is taken into account in the aggregate.

The difference between one-time income generation and a business is focus. If a person bought, for example, a mobile phone in China, and then sold it in Russia at a higher price, this is not considered entrepreneurship and is not punishable by law.

A transaction that was aimed at making a profit, further investing money in the purchase of goods and its sale, is considered the activity of an entrepreneur.

Since Article 171 is of a blanket nature, it is possible to clarify what entrepreneurship itself is in Article 2 of the Civil Code of the Russian Federation.

They talk about related offenses if the crimes belong to the same category (in this case, the economic sphere), and the articles in their disposition indicate similar acts.

Related compounds

As an example, we can consider the provisions of the Criminal Code of the Russian Federation 171 and 159. In both cases, the perpetrator essentially commits theft. Only the first article deals specifically with business aimed at making profits, which will be of a recurring nature, and the second article deals with obtaining (illegally) property, movable or immovable, including money. At the same time, fraud can be either associated with entrepreneurship or be the result of illegal actions of an ordinary citizen.

Determination of the culprit

The issue related to the subject of the crime is considered in the resolution quite objectively. The message that punishment should be applied to a specific citizen does not allow for ambiguity and interpretation.

Thus, criminal liability for illegal activities, including related offenses, is borne by the person who, in one way or another, was appointed on a permanent or temporary basis as the head of the entire enterprise, including branches and representative offices (Article 171 of the Criminal Code of the Russian Federation with commentaries). In simple terms, only the most important person is brought forward as the accused.

Employees working at this enterprise and carrying out instructions from its head are not responsible for the illegal activities of the head.

The court's decision

A conviction under Article 171 of the Criminal Code of the Russian Federation must necessarily contain in the descriptive and motivational part the reasons why it was decided that a certain activity of a citizen was entrepreneurial.

In relation to a crime, when as a result not only money was received, but also valuables or property, a sentence is passed, where the reasons for the turnover of such income in favor of the state are indicated in the descriptive and motivational part.

The position of a citizen who is brought as an accused that he did not know about the need to register or obtain a license does not matter: ignorance of the law does not excuse him from liability. Moreover, if we talk about permission to carry out certain types of activities, their list is so small that it is simply impossible to get confused. It is unlikely that the blasting manufacturer, for example, did not know that he needed to obtain a license for this.

In addition, any large companies with which a businessman plans to cooperate, when establishing partnerships in any area that is subject to mandatory licensing, require this document.

1. Carrying out business activities without registration or without a license in cases where such a license is required, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale, -
shall be punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to four hundred eighty hours, or by arrest for a term of up to six months.

2. The same act:
a) committed by an organized group;
b) associated with the extraction of income on an especially large scale, -
c) the clause has lost force since December 11, 2003 - Federal Law of December 8, 2003 N 162-FZ, -
shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, or by imprisonment for a term of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months or without it.

The note has lost force since August 8, 2004 - Federal Law of July 21, 2004 N 73-FZ.

Commentary on Article 171 of the Criminal Code of the Russian Federation

1. The objective side is characterized by two forms of criminal activity. The first is carrying out business activities without registration, i.e. when in 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 the acquisition by an individual of the status of an individual entrepreneur. Fulfillment of duties under an employment contract (tutors, domestic servants, etc.), activities of members of the bar association, etc. are not considered entrepreneurship.

The second form is carrying out business activities without a license, when such a license is mandatory.

The right to carry out activities for which a license is required arises from the moment of its receipt or within the period specified therein and terminates upon expiration of its validity (unless otherwise provided), as well as in cases of suspension or cancellation of the license (clause 3 of Art. 49 of the Civil Code of the Russian Federation). If a person, after the expiration of the license or its suspension, continues to engage in entrepreneurial activity, then such activity should be considered as carried out without a license.

2. A necessary condition for bringing to criminal liability for illegal business is the infliction of large damage to citizens, organizations or the state, or the act committed must be associated with the extraction of large income (see note to Article 169 of the Criminal Code).

Income is understood as proceeds from the sale of goods (work, services) during the period of illegal business activity without deducting expenses incurred by the person related to the implementation of illegal business activity.

3. If major damage from carrying out business activities without registration is caused by non-payment of taxes, then liability arises only under Art. 171 of the Criminal Code and additional qualifications under Art. Art. 198, 199 of the Criminal Code is not required.

4. The subjective side of the crime is characterized by an intentional form of guilt.

5. The subject of the crime is a sane person who has reached the age of 16 years.

Another commentary on Article 171 of the Criminal Code of the Russian Federation

1. The main direct object is social relations in the field of business activity. An additional object is the protected interests of citizens, society and the state. We are talking about actually permitted business activities, and not about types that are prohibited or require special permission (for example, the production of weapons and drugs that are withdrawn from free civilian circulation). For a correct understanding of all issues of criminal liability for crimes in the business sphere, it is necessary to use the explanations of the Plenum of the Supreme Court, given in the Resolution of the Russian Federation of November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property , acquired by criminal means" (Rossiyskaya Gazeta. 2004. December 7).

2. The objective side of this crime is expressed in illegal entrepreneurship, i.e. in independent activities 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 not registered as subjects of such activity or in violation of established rules. The act can be expressed in the following two forms: carrying out business activities without registration; carrying out business activities without a special permit (license) in cases where such a license is required.

3. The composition by design of the objective side is formal and material. With its formal structure, to recognize a crime as completed, it is sufficient to commit an act in the specified forms, but associated with the extraction of income on a large scale. Income should be understood as proceeds from the sale of goods during the period of illegal business activity without deducting the expenses incurred by the person associated with the implementation of such activity. When major damage is caused to the protected interests of citizens, society or the state, the composition acquires a material construction, but it is necessary to establish a causal connection between illegal business and the damage caused (on the recognition of income and damage as major, see the commentary to Article 169 of the Criminal Code). The specificity of this composition is that illegal actions that do not cause major damage cannot be qualified as an attempt on illegal business, but are considered only as an administrative offense.

4. The subjective side is characterized by an intentional form of guilt. With a formal composition, intent is direct, with a material one it can be both direct and indirect. The subject is aware that he is carrying out business activities without registration or without a license in cases where it is mandatory, and wants to do so, generating large income; or he is aware of the illegality of his actions, foresees that as a result of his actions, major damage will probably or inevitably be caused to citizens, organizations or the state, and desires the occurrence of these criminal consequences.

5. Subject - a natural, sane person who has reached the age of 16.

6. The qualified composition of illegal entrepreneurship includes two characteristics: its commission by an organized group (see commentary to Article 35 of the Criminal Code) and extraction of income on an especially large scale.

Appeal decision No. 22-5617/2018 22K-5617/2018 dated August 30, 2018 in case No. 22-5617/2018

S T A N O V I L: The preliminary investigation authorities have accused 1 of committing a crime under paragraph “b” of Part 2 of Art. 171 of the Criminal Code of the Russian Federation. The appealed resolution of the Oktyabrsky District Court of Krasnodar dated August 14, 2018 extended the period of detention of accused 1 under house arrest for 01 ...

Appeal decision No. 22-5545/2018 22K-5545/2018 dated August 29, 2018 in case No. 22-5545/2018

Krasnodar Regional Court (Krasnodar Territory) - Criminal

Until September 23, 2018 inclusive. ESTABLISHED: The preliminary investigation body accuses A of committing crimes under Part 4 of Article 159, paragraph “b” of Part 2 of Art. 171, part 4 of article 159, part 4 of article 159, part 4 of article 159 of the Criminal Code of the Russian Federation. The investigator filed a petition with the court to extend the period of detention of the accused...

Appeal resolution No. 22K-2884/2018 of August 28, 2018 in case No. 22K-2884/2018

V. has set a deadline for familiarizing himself with the materials of criminal case No. 1 in relation to A.V. Gorbunov, accused of committing a crime under paragraph “b” of Part 2 of Art. 171 of the Criminal Code of the Russian Federation until June 27, 2018 inclusive. After hearing the speech of the accused Gorbunov A.V. and his defender Matuseeva I.V., who supported the arguments of the appeal, the opinion of prosecutor Yashkov...

Appeal decision No. 22-1445/2018 dated August 28, 2018 in case No. 22-1445/2018

Tver Regional Court (Tver Region) - Criminal

The imposition of a criminal law measure in the form of a court fine against Full Name 1, born in 1985, accused of committing a crime under paragraph “b” of Part 2 of Art. 171 of the Criminal Code of the Russian Federation. Chairman Andreev V.V. Having presented the materials of the case, the arguments of the appeal, having heard the opinions of the participants in the process, ESTABLISHED: A criminal case against FULL NAME1, accused on the grounds of a crime provided for...

Appeal resolution No. 22K-2844/2018 of August 22, 2018 in case No. 22K-2844/2018

Saratov Regional Court (Saratov region) - Criminal

RF "Engelskoe" Saratov region Ananyeva Yu.V. dated January 19, 2018 to initiate a criminal case against her under paragraph “b” of Part 2 of Art. 171 of the Criminal Code of the Russian Federation. In this regard, the court, based on the fact that on the issues raised in the complaint there is already a court decision in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, came...

Appeal decision No. 22K-2277/2018 3/1-30/2018 dated August 21, 2018 in case No. 22K-2277/2018

Supreme Court of the Republic of Crimea (Republic of Crimea) - Criminal

Registered at the address: and actually residing at the address: the accused who has not been convicted at the time of choosing a preventive measure for committing a crime under Part 2 of Art. 171. 2 of the Criminal Code of the Russian Federation. Having heard the report of judge Gritsenko Yu.F. briefly outlining the content of the appealed decision and the essence of the appeal, explanations of the defendant’s defender - lawyer O.S. Timakov, the accused...

Resolution No. 22K-703/2018 of August 21, 2018 in case No. 22K-703/2018

Kostroma Regional Court (Kostroma Region) - Criminal

Submitted materials, court U STA N O VIL On June 08, 2018, the investigator opened a criminal case under Part 1 of Art. 171 of the Criminal Code of the Russian Federation regarding the illegal business of Vodavet LLC in the Kadysky district of the Kostroma region. The investigator sent a petition to the court to conduct a search in the home FULL NAME1 Resolution...

Resolution No. 22-5311/2018 22K-5311/2018 of August 21, 2018 in case No. 22-5311/2018

Krasnodar Regional Court (Krasnodar Territory) - Criminal

The court ruling was left unchanged, the appellate court ESTABLISHED: The appealed court ruling against Sh., accused of committing a crime under clause “b”, part 2 of Art. 171 of the Criminal Code of the Russian Federation, the period of detention under house arrest was extended by 01 month 00 days, and in total up to 03 months 03 days, that is, until September 17, 2018...

According to government estimates, about 20 million working-age Russians do not declare the sources of their income. About half of them run their own, often small, illegal businesses. What fine will they face for illegal business activities in 2019?

What is entrepreneurial activity

But first, what is entrepreneurship anyway? How does it differ from employment? And why is illegal business prosecuted by law?

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

If a business is conducted without registration, then the state does not receive anything from such a commercial entity. But at the same time, an illegal entrepreneur enjoys all the rights of a citizen, plus he can count on free medical care and a social pension. And this happens at the expense of law-abiding businesses and their employees, who pay taxes and fees.

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

Administrative sanctions

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

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

At the same time, for violation of the legislation regulating business, fines are imposed on legal merchants, and often these are very significant amounts. For example, for placing advertising without the consent of the local administration, a legal entity can be fined up to 1 million rubles.

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

Tax penalties

Tax legislation does not establish liability for illegal business, but imposes fines for non-payment of tax or failure to register.

If it is proven that income has been received from an illegal business on which tax has not been paid, then a fine will be collected under Article 122 of the Tax Code of the Russian Federation. This is 20% of the tax amount, and for intentional evasion of payment - 40%. The tax itself and penalties on it will also have to be paid.

If an entrepreneur conducts real activities for more than 30 days without registering and registering with the Federal Tax Service, then this threatens with a fine of 10,000 rubles under Article 116 of the Tax Code of the Russian Federation.

Criminal liability

A fine for illegal business activities in 2019 may also be imposed as part of criminal prosecution. The amounts here are significant - up to 300 thousand rubles or the income of the convicted person for a period of up to two years.

However, criminal prosecution can be carried out if proven income from an illegal business was received on a large scale, and this is more than 2.25 million rubles. Anything below falls under administrative jurisdiction, i.e. subject to fines from 500 to 2500 rubles.

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

Illegal business activity (punishment for an individual)

Why register a business

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

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

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

If we talk about the b2b segment, then it is more difficult for an entrepreneur without registration to find a business partner. The efforts of tax authorities to control the execution of business transactions are bearing fruit. To avoid being accused of tax evasion, counterparties conduct a thorough analysis of their future partner before concluding transactions. And the first point of this analysis is the presence of registration in the state register of individual entrepreneurs or legal entities.

New form of entrepreneurial activity

Usually, when talking about registering a business, they mean an individual entrepreneur or an LLC. But although these organizational and legal forms are very popular, they have a lot of disadvantages. This includes a fairly high tax burden, the complexity of management, the need to constantly submit difficult reports, the use of a cash register, etc.

For several years now, the state has been trying to create a new form of entrepreneurial activity - self-employed persons. Essentially, this category includes all small sellers and performers who have little income and do not employ workers in their business.

Of course, they could register as an individual entrepreneur, but the following nuances stop them:

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

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

However, the first experiment aimed at bringing illegal entrepreneurs out of the shadows failed. The self-employed included a very narrow circle of performers: tutors, domestic staff, nannies and caregivers. Moreover, they do not pay taxes and contributions for two years, but simply register with the Federal Tax Service.

The unregulated status of the self-employed, as well as the need for subsequent registration as individual entrepreneurs, did not bring results. Across Russia, just over 1,000 people are registered in this capacity, which is incomparable with the millions of illegal entrepreneurs.

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

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

And most importantly, the tax payment system has been simplified as much as possible. Confirmation of payment for the buyer is issued through the mobile application, i.e. without a cash register. Self-employed people will register in their personal account on the Federal Tax Service website, where the income they receive is reflected. You must pay tax on each such transaction. If there is no income, then you will not have to pay taxes or contributions.

The implementation of this option in practice will make it possible to bring the majority of small businesses out of the shadows, and they will no longer have to be subject to fines and other sanctions.