Illegal commercial activity: composition and types of crime under the Criminal Code of the Russian Federation. Illegal entrepreneurship - judicial practice

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 we compare an entrepreneur with employee, then a number of differences can be identified.

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 different ways, including 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, it is possible to bring criminal liability if proven income from illegal business was received in large size, 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 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 business 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 is a fairly high tax burden, and the complexity of management, and the need to constantly submit difficult reports, and the use of a cash register, etc.

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

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

• 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. A very narrow circle of performers were classified as self-employed: 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 not comparable to 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 different areas 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. Payment confirmation for the buyer is issued via mobile app, i.e. without a cash register. Self-employed people will register with 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.

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, except for the cases provided for in Article 171.3 of this Code, -

shall be punishable by a fine in the amount of up to three hundred thousand rubles or in the amount wages or other income of the convicted person for a period of up to two years, or compulsory work for a period of up to four hundred eighty hours, or arrest for a period of up to six months.

2. The same act:

a) committed by an organized group;

b) associated with the extraction of income on a particularly large scale;

c) has become invalid, -

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.

Note. Lost power.

Commentary to Art. 171 of the Criminal Code of the Russian Federation

According to Art. 3 Federal Law dated 05/04/2011 N 99-FZ “On licensing of certain types of activities” (as amended on 07/28/2012) licensing authorities are authorized federal bodies executive power or their territorial bodies and in case of transfer of powers Russian Federation in the field of licensing authorities state power of the constituent entities of the Russian Federation, executive authorities of the constituent entities of the Russian Federation that carry out licensing.
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NW RF. 2011. N 19. Art. 2716; RG. 2011. N 160; NW RF. 2011. N 43. Art. 5971; N 48. Art. 6728; 2012. N 26. Art. 3446; N 31. Art. 4322.

Licensing of certain types of activities is regulated by other federal laws. Yes, licensing educational activities provided for in Art. 6 of the Federal Law of December 29, 2012 N 273-FZ “On Education in the Russian Federation” and is carried out by the federal executive body exercising the functions of control and supervision in the field of education (Rosobrnadzor), or by the executive body of the constituent entity of the Russian Federation exercising the delegated powers of the Russian Federation in the field of education.
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RG. 2012. 30 Dec. Comes into force on September 1, 2013. Until this time, the Law of the Russian Federation of July 10, 1992 N 3266-1 “On Education” (as amended on November 12, 2012) is in force.

Licensing authorities can also be local governments, for example, in cases of issuing a license to operate retail sales alcohol products. Article 18 of the Federal Law of November 22, 1995 N 171-FZ “On government regulation production and turnover ethyl alcohol and alcoholic products" (as amended on December 30, 2012) provides that licenses for the retail sale of alcoholic beverages are issued by constituent entities of the Russian Federation in the manner established by them, taking into account the provisions of this Federal Law, only to organizations. The authority to license the retail sale of alcoholic beverages may be transferred by a subject of the Russian Federation to local government bodies in accordance with Art. 7 of the said Federal Law.
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NW RF. 1999. N 2. Art. 245; 2001. N 53 (part 1). Art. 5022; 2002. N 30. Art. 3026, 3033; 2003. N 47. Art. 4586; 2004. N 45. Art. 4377; 2005. N 30 (part 1). Art. 3113; 2006. N 31 (part 1). Art. 3433; N 43. Art. 4412; 2007. N 1 (part 1). Art. eleven; N 17. Art. 1931; N 31. Art. 3994; N 49. Art. 6063; 2008. N 30 (part 2). Art. 3616; 2009. N 1. Art. 21; N 52 (part 1). Art. 6450; 2010. N 15. Art. 1737; 2011. N 1. Art. 42; N 27. Art. 3880; RG. 2011. N 159, 161; SZ RF 2012. N 26. Art. 3446; 2012. N 31. Art. 4322; RG. 2012. N 301.

2. Carrying out business activities without registration will take place only in cases where there is no entry in the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs about the creation of such legal entity or an individual acquires the status of an individual entrepreneur, or contains a record of the liquidation of a legal entity or the termination of the activities of an individual as an individual entrepreneur.

3. If federal law allows engaging in entrepreneurial activities only with a special permit (license), but the procedure and conditions were not established, and a person began to carry out such activities in the absence of a special permit (license), then the actions of this person associated with the extraction of income in on a large or especially large scale or causing major damage to citizens, organizations or the state, should be qualified as carrying out illegal business activities without special permission (license).

4. If federal legislation excludes the corresponding type of activity from the list of types of activities, the implementation of which is permitted only on the basis of a special permit (license), the actions of the person who was engaged in this type of business activity do not contain the corpus delicti provided for by the commented article.

5. In the commented article, income is understood as revenue from the sale of goods (work, services) during the period of illegal business activity without deducting the expenses incurred by the person related to the implementation of illegal business activity.

6. As a constitutive, but at the same time alternative to large-scale income, a sign of the objective side of the crime in question, the legislator indicated the infliction of large-scale damage by the act. There may be cases when such damage is actually caused and at the same time is not a sign of another crime. For example, non-payment of fees for registration and obtaining various licenses can be considered as damage. However, to qualify under the article under discussion, it is necessary that such damage could be regarded as major, i.e. exceed 1 million 500 thousand rubles. (see note to Article 169 of the Criminal Code). Based on clause 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 18, 2004 N 23, unpaid taxes on income received from illegal business activities can be considered damage.

7. The subjective side is characterized by both direct and indirect intent. In the text of the commented article there is no indication of a selfish motive, but its establishment is implied on the basis that entrepreneurial activity, including illegal ones, is necessarily aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services.

8. The subject of the crime provided for in the commented article can be either a person who has the status of an individual entrepreneur or a person carrying out entrepreneurial activities without state registration as an individual entrepreneur (hence, the subject in the latter case is common).

When an organization (regardless of its form of ownership) carries out illegal business activities, liability under the commented article is subject to liability for a person who, by virtue of his official position, was directly, permanently, temporarily, or by special authority assigned the responsibilities of managing the organization (for example, the head executive body legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney), as well as a person actually performing the duties or functions of the head of the organization. In the latter case, the subject is special.

9. In cases where a person, with the goal of generating income, is engaged in illegal activities, liability for which is provided for in other articles of the Criminal Code (for example, illegal production firearms, ammunition, sale of narcotic drugs, psychotropic substances and their analogues), what he did does not require additional qualifications under the commented article.

10. On the commission of a crime by an organized group, see comment. to Art. 35.

11. The amount of especially large income is determined in the note. to Art. 169 of the Criminal Code, it must exceed 6 million rubles.

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New edition of Art. 171 of the Criminal Code of the Russian Federation

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, except for the cases provided for in Article 171.3 of this Code, -

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 a particularly large scale;

c) has become invalid, -

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.

Note. Lost power.

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

1. The commented article establishes the TOS only if we're talking about on business activities that, in principle, can be registered. According to the explanation of paragraph 1 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23, when deciding whether a person’s actions contain signs of a crime under Art. 171, the courts should find out whether these actions correspond to those specified in paragraph 1 of Art. 2 of the Civil Code are signs of entrepreneurial activity aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services, which is carried out independently at one’s own risk by a person registered in the manner prescribed by law as an individual entrepreneur.

1.1. In cases where a person not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need to use this property, temporarily leased it or rented it out and as a result of such a civil transaction, he received income (including in a large or especially large amount), what he did does not entail a criminal offense for illegal entrepreneurship. If the specified person evades paying taxes or fees on the income received, his actions, if there are grounds for this, contain signs of a crime under Art. 198 (clause 2 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23).

If a person is engaged in prohibited activities, the penalty is imposed directly for these criminal acts, for example, for human trafficking, illegal manufacturing of weapons, illegal production of narcotic drugs, psychotropic substances or their analogues, etc. Moreover, in cases where a person, with the goal of generating income, is engaged in illegal activities, liability for which is provided for in other articles of the Criminal Code of the Russian Federation (for example, the illegal manufacture of firearms, ammunition, the sale of narcotic drugs, psychotropic substances, their analogues), the crime committed by him is additional qualifications by comment. is not required by the article (clause 18 of the Resolution of the Plenum of the RF Armed Forces No. 23).

2. Objective side elements of the crime consist of illegal entrepreneurship, i.e. in taking initiative independent activity carried out at your own risk and aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services, unauthorized, not on legal grounds.

3. Illegal business can be expressed in the following independent forms: 1) in carrying out business activities without registration; 2) in carrying out business activities in violation of registration rules; 3) in submitting documents containing knowingly false information to the body carrying out state registration of legal entities or individual entrepreneurs; 4) in carrying out business activities without a special permit (license), when it is mandatory; 5) in carrying out business activities in violation of licensing requirements and conditions.

4. Carrying out business activities without registration occurs: 1) when a person is engaged in business activities without forming a legal entity or creates commercial organization without applying for registration to federal executive authorities; 2) when a person has submitted documents for state registration of entrepreneurial activity and is engaged in it, without waiting for a decision to be made on his issue; 3) when a person has been refused (legal or illegal) state registration, but nevertheless continues to carry out business activities. In any case, as explained by the Armed Forces of the Russian Federation, for the existence of this form of illegal entrepreneurship, it is necessary to establish the fact that there is no record in the unified state register for legal entities and the unified state register for individual entrepreneurs about the creation of a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or, conversely, the presence records on the liquidation of a legal entity or termination of the activities of an individual as an individual entrepreneur (clause 3 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23).

5. The Plenum of the Armed Forces of the Russian Federation believes that the implementation of business activities in violation of the registration rules should be understood as the conduct of such activities by a business entity that was aware that violations were committed during registration that give grounds for declaring the registration invalid (for example, they were not presented in full the volume of documents, as well as data or other information necessary for registration, or it was carried out contrary to existing prohibitions) (clause 3 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23).

6. According to the explanations of the Plenum of the Armed Forces of the Russian Federation, the submission to the body that carries out state registration of legal entities and individual entrepreneurs of documents containing knowingly false information should be understood as the submission of documents containing such knowingly false or distorted information, which entailed the unjustified registration of a business entity (Clause 3 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23).

6.1. The documents include, for example, protocols (agreements) on the creation of a legal entity, constituent documents of a legal entity, a document on payment of state duty, a decision on the reorganization of a legal entity, a merger or accession agreement, a transfer deed or separation balance sheet, main documents of the registered entity as an individual entrepreneur, etc.

The information contained in these documents must be false, i.e. not true. The guilty person must be aware of the fact that the information is false.

7. In accordance with paragraph 4 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23, when deciding whether a person’s actions contain signs of carrying out entrepreneurial activities without a special permit (license) in cases where such permission is mandatory, the courts should proceed from the fact that certain types of activities , the list of which is determined by the Federal Law, can only be carried out on the basis of a special permit (license). The right to carry out activities for which a special permit (license) is required arises from the moment the permit (license) is received 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 permits (licenses) (clause 3 of article 49 of the Civil Code).

7.1. Carrying out business without a license occurs when: 1) a person engages in activities that require licensing without applying to the licensing authorities for the appropriate license; 2) the activity is carried out after the application for a license is submitted, but before a decision is made on it, or 3) after receiving a decision from the licensing authority to refuse to grant a license, or 4) after the license has been suspended by the licensing authority, or 5) after the license has been revoked by the licensing authority or by a court decision based on an application from the licensing authority, or 6) upon expiration of the license; 7) several types of activities are carried out at once, similar in nature and content, despite the fact that there is a license for only one of them; 8) the activity is carried out under a license owned by another person or organization.

7.2. The Plenum of the Armed Forces of the Russian Federation also clarified that if federal law allows engaging in business activities only with a special permit (license), but the procedure and conditions were not established, and a person began to carry out such activities in the absence of a special permit (license), then the actions of this person, associated with the extraction of income on a large or especially large scale or with causing major damage to citizens, organizations or the state, should be qualified as carrying out illegal business activities without a special permit (license) (clause 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23). It should be noted that the above decision is not controversial and not impeccable, since, in addition to the guilt of the person, of course, carrying out his activities in violation of the provisions of the law - without a license, there is also the guilt federal bodies- states that were obliged to regulate licensing conditions and did not do so. The Armed Forces of the Russian Federation places all the blame entirely on the person engaged in entrepreneurial activity.

7.3. Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23 contains another provision that is relevant to the analyzed form of illegal entrepreneurship: if federal legislation excludes the corresponding type of activity from the list of types of activities, the implementation of which is permitted only on the basis of a special permit (license), in the actions of a person who was engaged in this type of business activity, there is no corpus delicti, as provided for in the comment. article (clause 17).

8. Carrying out business activities in violation of licensing requirements and conditions. License requirements and conditions include: 1) qualification requirements to the license applicant and licensee; 2) requirements for the compliance of the object in which or with the help of which the type of activity is carried out, special conditions its implementation; 3) other requirements and conditions provided for by the provisions on licensing of specific types of activities. Violation of at least one of the named licensing requirements and conditions, in the presence of other elements of a crime, is subject to comment. article.

8.1. In practice, situations arise when a subject of the Russian Federation has adopted a regulatory legal act on issues arising from relations related to the licensing of certain types of activities, in violation of its competence or in violation of the Federal Law, or when such legal regulation refers to the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation (Article 76 of the Constitution of the Russian Federation). In this case, a person carrying out his activities without a license, or who has received a license in accordance with the specified normative act, but allows deviations from its conditions and (or) requirements, cannot be held liable under Art. 171. In accordance with the Constitution, the Federal Law is applied in this situation (clause 8 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23).

9. The crime is completed at the moment of causing large damage to citizens, organizations or the state, or from the moment the perpetrator extracts a large amount of income. The concepts of major damage and large-scale income are given in the note. to Art. 169; it exceeds 250 thousand rubles. Paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 23 states: “Income in Article 171 of the Criminal Code of the Russian Federation should be understood as proceeds from the sale of goods (work, services) during the period of illegal business activity without deducting expenses incurred by a person related to the implementation of illegal business activity.” .

10. The subjective side of illegal entrepreneurship is characterized by a deliberate form of guilt.

11. The subject of a criminal offense is a person who has reached 16 years of age.

11.1. In accordance with paragraph 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23, when an organization (regardless of its form of ownership) carries out illegal business activities, it is liable under Art. 171 is subject to a person who, by virtue of his official position, was permanently, temporarily or by special authority directly assigned responsibilities for managing an organization (for example, the head of the executive body of a legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney), and also a person who actually performs the duties or functions of the head of an organization.

11.2. If a person (with the exception of the head of an organization or a person who is permanently, temporarily or by special authority directly assigned responsibilities for managing the organization) is in labor relations with an organization or individual entrepreneur that carries out its activities without registration, in violation of registration rules, without special permission (license) or in violation of licensing requirements and conditions or with the provision of deliberately forged documents, then the fulfillment by this person of the duties arising from the employment contract is not contains the elements of the crime provided for in the comment. article (clause 11 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23).

12. The qualifying signs of illegal entrepreneurship (Part 2 of the commentary article) are: a) an organized group; b) generating income on a particularly large scale.

13. The concept of income on an especially large scale is given in the note. to Art. 169. Its amount exceeds 1 million rubles.

14. The Plenum of the RF Armed Forces in Resolution No. 23 resolved several problems regarding the qualification of illegal entrepreneurship in conjunction with some other articles of the Criminal Code of the Russian Federation.

14.1. If, when engaged in illegal business activities, a person illegally uses someone else’s trademark, service mark, name of place of origin of goods or similar designations for homogeneous goods and in the presence of other signs of a crime under Art. 180, what he did must be qualified according to the totality of crimes provided for in Art. 171 and 180 (clause 14).

14.2. If, in the course of illegal business activities, the production, acquisition, storage, transportation for marketing purposes or sale of unmarked goods and products subject to mandatory marking with excise tax stamps, special stamps or marks of conformity protected from counterfeiting are carried out, committed on a large or especially large scale, actions persons must be classified according to the totality of crimes provided for in Art. 171 and 171.1.

In cases where illegal business activity was associated with the production, storage or transportation for the purpose of distribution or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers, the offense constitutes a set of crimes provided for in the relevant parts of Art. 171 and 238.

If illegal business activity involves unauthorized production, sale or use, as well as counterfeiting of a state hallmark, the person’s actions must be classified as a set of crimes: under Art. 171, as well as under Art. 181 as committed out of selfish or other personal interest (clause 15).

14.3. The Plenum of the RF Armed Forces decided in a fundamentally different way than before, and correctly, the controversial issue of the need for additional qualification of illegal entrepreneurship under articles on tax crimes. Paragraph 16 of Resolution No. 23 now states: “The actions of a person found guilty of engaging in illegal business activities and failing to pay taxes and (or) fees on income received as a result of such activities are fully covered by the crime provided for in Article 171 of the Criminal Code of the Russian Federation. At the same time, property, money and other valuables obtained as a result of the commission of this crime, in accordance with paragraphs 2 and 2.1 of part 1 of Article 81 of the Code of Criminal Procedure, are recognized as material evidence and, by virtue of paragraph 4 of part 3 of Article 81 of the Code of Criminal Procedure, are subject to conversion to the state’s revenue with the inclusion of a sentence justification for the decision."

15. Acts provided for in Part 1 belong to the category of crimes of minor gravity, Part 2 - of medium gravity.

Another comment on Art. 171 of the Criminal Code of the Russian Federation

1. The objective side is characterized by two forms of criminal activity.

2. Carrying out business activities without registration, i.e. when there is no entry in the Unified State Register for legal entities and the Unified State Register for individual entrepreneurs about the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur. Does not require state registration: a) engaging in economic activities prohibited by law (for example, illegal drug trafficking); b) concluding one-time transactions of a civil law nature (for example, occasionally carrying out small works under a contract). It is not entrepreneurship to perform duties employment contract(tutors, domestic servants, etc.), activities of members of the bar, private notaries.

3. Federal Law No. 99-FZ of May 4, 2011 “On licensing of certain types of activities” contains a list of types of activities subject to licensing, specifies which of them are licensed at the federal level, which by the executive authorities of the constituent entities of the federation, and also lists types of activities that are licensed in accordance with other laws and regulations.

The right to carry out activities for which a special permit (license) is required arises from the moment the permit (license) is received 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 permits (licenses) (clause 3 of article 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, such activity should be considered as carried out without a special permit (license).

4. 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 of the Russian Federation).

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

Causing harm to health of any severity while carrying out illegal business activities is not covered by Art. 171 of the Criminal Code of the Russian Federation and requires qualification according to the totality of crimes.

5. 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.

• Up

That's all today more people begins 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 took part in this 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 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 are engaged 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 a crime is one that is based on the organization and/or implementation 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 Krasnodar region(“Azov City”), the second is 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;

— real time in a correctional institution for 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 in conjunction 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, in relation to entrepreneurs who carry out illegal business (without registration or without a permit for certain types activities), there are several articles in which the activity itself is divided by type of product or product.

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 permission for any type of activity, but in fact the businessman carries out 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 species works (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 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 normative act, contrary to the laws of the Federation or not falling within the competence of these bodies, and the 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, mobile phone in China, and then in Russia, he sold it 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.

Related offenses are spoken of if the crimes belong to the same category (in in this case to the sphere of economics), 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 structures, 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). Speaking in simple language, only the most important one is brought in as an accused.

Employees working for this enterprise and those carrying out the instructions of 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.

Besides this, any large companies with whom the businessman plans to cooperate when establishing partnerships in any area that is subject to mandatory licensing, this document is required.

1. Carrying out business activities without registration or without a license in cases where such a license is required, if this act caused large damage to citizens, organizations or the state or is associated with the extraction of income on a large scale, - is punishable by a fine of up to three hundred thousand rubles or in the amount wages or other income of the convicted person for a period of up to two years, or by compulsory work for a period of up to four hundred eighty hours, or by arrest for a period of up to six months. 2. The same act: a) committed by an organized group; b) associated with the extraction of income on a particularly large scale; c) has become invalid, - 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. Note. Lost power.

Legal advice under Art. 171 of the Criminal Code of the Russian Federation

Zinaida Bogdanova

Good afternoon Interested in the practice of applying Art. 171-2 Illegal organization and conduct of gambling. Are there any precedents for the application of this article in conjunction with Art. 174, 174 -1, as well as Art. 198?

Vladimir Fomkin

hello, what will happen if you don’t pay the fine, here’s the situation - article 171, part 3. everyone was imprisoned under this article, everyone paid fines, which, in addition to the fact that they were imprisoned, they were given, the amount of income under this article, I emphasize, which is not proven, is not there was an examination, more than 100 million rubles, if the court obliges these people to pay this fine without conducting an examination, then what will happen if a person is not able to pay such a large sum? a person has nothing in his property, just like his wife and child, can this fine be imposed on his parents, that is, begin to take away what belongs to the parents? does this fine pass on to his wife and children, although it is written in the resolution that only what is owned by this person is taken away? I'm really looking forward to your answer, thanks in advance!

• Question answered over the phone

Daria Yakovaleva

Good afternoon I am accused under Article 171/2 (a) by a group of persons. But they put a driver in the group who actually worked hourly. And they are accused only based on a telephone recording. Where do I say, take it, take it away. And I am also accused because there were no control purchase records. This way they can prove it to me. The case has already been extended for 15 months.

• Question answered over the phone

Dmitry Karasyuk

Hello! Are you aware of the practice of bringing to criminal liability under Art. 171 of the Criminal Code of the Russian Federation for receiving personal income. person from the issued legal entities. face loans. Does the amount of income fall under the “especially large amount”?

• Question answered over the phone

• Some zodiac signs will not.

• Does he have permanent residence in Russia? If yes, then they should not be detained. According to Part 1, no one will do this, but in other parts it is quite possible (since these are already serious crimes), and if you are also fooling the investigation...

Ekaterina Yakovaleva

As usual, criminal cases under Art. 171 of the Criminal Code of the Russian Federation, if the enterprise operated without a license providing a service to the population (drinking water).

• Lawyer's answer:

  usually a fine for an official (director or manager) of 2,500 rubles. up to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to two years, or by compulsory work for a period of one hundred eighty to two hundred and forty hours. Part 2 art. 171 of the Criminal Code of the Russian Federation (usually receiving income on an especially large scale) provides for a fine of 100,000 rubles. up to 300,000 rub. or in the amount of wages or other income of the convicted person for a period of one to three 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.

Antonina Andreeva

What is meant by especially large size in Article 171 of the Criminal Code of the Russian Federation?

• A particularly large amount of income is defined in the note to Art. 169 of the Criminal Code: it amounts to more than 6 million rubles.

Evgeniy Leontovich

Is this Article 171 of the Criminal Code - committed by an organized group? Kotov worked as a senior salesman in a store of the Luch company, and Pankova worked as a salesperson in the same store located on the territory of the company. They sold meat products to workers and employees of this company through representatives of workshops and departments at an inflated price, and appropriated the difference in cost. For two years, Kotov and Pankova systematically sold beef at the price of the 1st grade, while they should have sold it at the prices of the 2nd and 3rd grades. As a result of these actions, Kotov and Pankova received illegal income in the amount of 105 thousand rubles.

• Lawyer's answer:

  this is just a fraud under Article 159 - in the Russian Federation in Moscow a network of gas stations was identified that sold the entire range of fuels and lubricants, as it turned out when checking the documents, gasoline above 92 was never supplied to them - one can only feel sorry for the owners of cars who refueled with “pseudo 95 and 98” grades of fuel in this In this case, people sold products by misleading customers - although all this is impossible to prove in the current realities. . this task is for the OBHSS of the 70-80s

Boris Ozerov

Need help with Art. 171 of the Criminal Code of the Russian Federation

• Lawyer's answer:

  Article 171. Illegal entrepreneurship 1. Carrying out business activities without registration or in violation of registration rules, as well as submitting documents containing knowingly false information to the body that carries out state registration of legal entities and individual entrepreneurs, or carrying out business activities without a 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 - 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 mandatory labor for a period of one hundred eighty to two hundred and forty hours, or arrest for a period of four to six months. 2. The same act: a) committed by an organized group; b) associated with the extraction of income on a particularly large scale, - c) has become invalid. 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 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. so what's the problem, Seryoga?

Inna Andreeva

Good evening! Question on Art. 171 UK. (clarification of the frames of large and extra-large sizes is necessary). Art. 171(171-1) of the Criminal Code provides for various options for liability depending on the size of income generation (size of the committed act - storage, production, etc.). Nowhere can I find precise explanations on the calculation of large and especially large sizes in relation to these articles. Some sources say that a large size is 200 minimum wages, an especially large size is from 500 to 700 minimum wages, in other sources a large size is 250,000 rubles, an especially large size is more than a million rubles.. So I had the following questions: 1) What legal acts regulates the principle of calculating large and especially large sizes in relation to Article 171 (171-1) of the Criminal Code of the Russian Federation? 2) And in general, the sizes themselves are in rubles or the minimum wage (if the calculation is made in the minimum wage, then the 100 ruble coefficient is taken for the minimum wage or the current one in Russia is 4330 rubles?) Thank you all in advance for your answers))

• large size 250 thousand - 1 mil. inclusive especially large over 1 mil. rubles

Olga Ryabova

Judicial practice under Art. 171 of the Criminal Code of the Russian Federation. Calculation of the amount of income.. Please send it by e-mail or simply provide a link to decisions, definitions, etc. related to Article 171 of the Criminal Code of the Russian Federation. It is advisable that they consider the issue regarding the calculation of the amount of income (in theory, this information should be contained there, since the punishment will still be imposed based on the amount of income).

• Lawyer's answer:

  all income without deducting expenses is calculated amount. It was at the plenum of the Supreme Council, I’m just too lazy to look for it. ....large size, large damage, income or debt on a large scale are recognized as cost, damage, income or debt in an amount exceeding one million five hundred thousand rubles, especially large - six million rubles.

Olga Stepanova

What is the maximum punishment under Article 171 of the Criminal Code of the Russian Federation? Just don’t quote from the law. In my own words, I didn’t understand anything there.

• 5 years if your income is from 250 thousand to 1 million + an organized group, or if your income is more than 1 million. If your income is from 250 thousand to 1 million and you are alone, then 6 months of arrest, if less than 250 thousand then there is no criminal liability

Stanislav Sozdomov

If you opened a car service in a garage without having an individual entrepreneur, then what should I be afraid of?

• The answer to your question is contained in Art. 171 of the Criminal Code of the Russian Federation. The current Criminal Code of the Russian Federation provides for criminal liability for illegal entrepreneurship, which means carrying out business activities without...

Klavdiya Antonova

What threatens a photographer without an IP certificate and is it necessary?

• What’s interesting is that in order to “harass” the wedding bomber, the tax authorities need to carry out some operational search activities. However, the legislation does not grant tax authorities the right to carry out operational investigations. That is, they have no right to...

Valeria Davydova

Is there an article prohibiting begging? How to deal with this?

• We'll find out if they accept.

Victor Brovin

Businessmen, are you already familiar with St. 174.1 171 199 of the Criminal Code of the Russian Federation, and especially 159.4. Well, this is absolutely terrible! encountered?. Art. 174.1 (legalization) Carrying out financial transactions and other transactions with funds or other property acquired by a person as a result of committing a crime (except for crimes provided for in Articles 193, 194, 198, 199, 199¹ and 199² of this Code), or the use of these funds or other property for carrying out business or other economic activities. Logically, it turns out that it is impossible to avoid committing a crime under Article 174.1. It is also impossible to have the intent to commit this crime, because the money coming as revenue to the company comes legally and is legally used for ordinary activities. But the investigation decides that you are a fraudster or an illegal entrepreneur, or a smuggler, or... both. The activities of your enterprise in relation to some transactions are called criminal. The investigation is assessing the amount of transactions. This is the amount of the crime. And automatically the amount of legalization under Article 174 note 1. The term is from 10 to 15. Next, the court reads the Criminal Code - “or the use of criminal means in business activities.” Oops! A trap for any businessman. Business activity is criminal. Legalization is an ideal, absolutely legal tool for law enforcement officers, who can either charge with it or not - at their discretion. The price is huge - 15 years. Cases of application of this article reach the point of absurdity: a fire license for a warehouse not renewed on time can attract charges under Article 171 - illegal business. The revenue received from the warehouse's activities during the period without a license was credited to the company's accounts. This is legalization. After all, according to the investigation, this was illegally obtained money that went into the business, and the business spent it, which means it legalized it. Simple logic. It is impossible for an entrepreneur to prevent such “legalization”. You can provide a license on time and bear responsibility for failure to obtain it, but how to avoid legalization?

• If you're scared, don't do business. Those who don't take risks don't drink champagne.

Victor Kukushkin

Is it possible to temporarily provide construction services without registering as an individual entrepreneur?

Vitaly Matveev

What is the responsibility for illegal business? For example, a person opened a cafe-kitchen for home delivery of food without registering the enterprise

• Lawyer's answer:

  For conducting business activities without registration as an individual entrepreneur, administrative, tax and criminal liability. Each type of liability presupposes its own rules for recording violations, drawing up documents and actually holding them accountable. According to the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, and the provision of services. To confirm the conduct of activities, it is necessary to prove two circumstances: systematicity and profit. An activity is considered systematic if it is carried out two or more times a year. When a citizen has once sold any property or provided a service to someone, he will not be considered to be engaged in entrepreneurial activity. Similarly, if a person sells goods, including systematically (that is, more than twice), but for the same money for which he bought them, or cheaper, the transactions will not be considered entrepreneurial activity. Because there is no profit. Code of Administrative Offenses of the Russian Federation, Part 1, Art. 14.1 of the Code of the Russian Federation on Administrative Offences. The possible fine ranges from 500 to 2000 rubles. Criminal Code of the Russian Federation Art. 171 of the Criminal Code. It occurs if, as a result of an inspection carried out by the police or the prosecutor’s office, it is proven that either the infliction of major damage to citizens, organizations or the state, or the receipt of income on a large scale, that is, in the amount of at least 250 thousand rubles. (note to Article 169 of the Criminal Code of the Russian Federation). The Tax Code is in two articles: 116 and 117. Evasion of registration with the inspectorate is subject to a fine of 10 percent of income received, but not less than 20 thousand rubles. In cases where the activity was carried out for more than 90 calendar days, the fine will be 20 percent of the amount of income, but not less than 40 thousand rubles. (Article 117 of the Tax Code of the Russian Federation). For violation of the deadline for registration with the inspectorate, the fine will be 5 thousand rubles. or 10 thousand rubles. if the delay is more than 90 calendar days (Article 116 of the Tax Code of the Russian Federation). They can only be punished under one of the articles.

Vasily Shelestov

Can I open an online store and sell things I made with my own hands without an individual entrepreneur?

• You can, but this is contrary to the legislation of the Russian Federation. What about taxes? What about the pension fund and other beggars? Criminal Code of the Russian Federation Art. 171? It's better not to mess with the government...

Vladislav Petryashin

work as a massage therapist without documents

• Illegal business activity: Administrative liability. Administrative responsibility is established in paragraph 1 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, according to which the implementation of entrepreneurial activities without state...

Irina Zhukova

Question on article 171, illegal entrepreneurship.. Quote: “Carrying out business activities without registration or without a license in cases where such a license is required, 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.” Quote (note to Article 169): “Large size, large damage, income or debt in a large amount is recognized as cost, damage, income or debt in an amount exceeding one million five hundred thousand rubles, especially large - six million rubles.” Let’s say I opened an online store selling hats, but I didn’t register anywhere and didn’t receive any licenses. Question: does the time frame for this act matter (for example, if you earned this one and a half million for 3 years or more, then you will not be prosecuted under the article)? If they have, then there should be a note or something else where this is specified. Is there such a thing?

• Lawyer's answer:

  If you systematically carried out activities aimed at generating income, but did not register this activity anywhere, then the income will be taken into account for the entire period of such activity. At the same time, there are statutes of limitations for criminal prosecution. For crimes of minor gravity, which include crimes under Art. 171 of the Criminal Code of the Russian Federation, the statute of limitations is two years. Let me clarify again. Here it is necessary to keep in mind that the statute of limitations begins to run from the moment the crime is committed, in this case the crime is ongoing, and the period will run from the moment the crime is completed.

• Tobacco and alcohol are not allowed without excise tax

Artem Khrapunov

Is this possible? I want to work part time in summer period. Sale + installation of greenhouses Registration of an individual entrepreneur in this case is of little benefit, taxes, pension. Because this is relevant for 2-3 months. Someone here mentioned a one-time patent, what is it? how it works? Or any suggestions?

• Lawyer's answer:

  There's no such thing. There are special tax regimes in the Tax Code of the Russian Federation. See "Chapter 26.5. PATENT TAX SYSTEM". It lists the types of business activities for which this patent system can be used (local laws on rates must also be adopted). It says, among other things, that “A patent is issued at the choice of an individual entrepreneur for a period from one to twelve months inclusive, within calendar year. “Apparently someone here mentioned this. BUT: “The patent taxation system is used by individual entrepreneurs along with other taxation regimes provided for by the legislation of the Russian Federation on taxes and fees. "That is, in order to switch to it, you must be an individual entrepreneur. There are no types of temporary individual entrepreneurs provided for in the legislation. The only thing you can think about is providing services under civil law contracts - but you need to be very careful so that you cannot be accused in illegal entrepreneurship (Article 14.1 of the Code of Administrative Offenses of the Russian Federation and Article 171 of the Criminal Code of the Russian Federation) “Article 14.1. Carrying out business activities without state registration or without a special permit (license) 1. Carrying out business activities without state registration as an individual entrepreneur or without state registration as a legal entity - entails the imposition of an administrative fine in the amount of five hundred to two thousand rubles. " "Article 171. Illegal entrepreneurship 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, is punishable by a fine in the amount up to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to two years, or by compulsory work 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, is 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 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. "

Alla Kudryavtseva

what is the penalty for trading without an individual entrepreneur? I have an online store. I sell products without registering as an individual entrepreneur or LLC, and without a cash register! How much are the fines?

• Lawyer's answer:

  Your activity is classified as “illegal business.” depending on the damage caused to the state - if it is small, then administrative liability is imposed in accordance with Art. 14.1. Code of Administrative Offenses - a fine is provided from 500 to 2000 rubles. If the damage caused exceeds 1.5 million rubles, then criminal liability is already provided for in accordance with Art. 171 of the Criminal Code of the Russian Federation provides for a fine of up to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to two years, or compulsory labor for a period of one hundred eighty to two hundred and forty hours, or arrest for a period of four to six months.

Vladimir Vanyushechkin

I'am a teacher. I don’t have enough hours. I would also like to engage in entrepreneurial activity. is it possible?

• Lawyer's answer:

  Individual labor pedagogical activity, accompanied by the receipt of income, is considered as entrepreneurial and is subject to registration (as an individual entrepreneur). Unregistered individual labor teaching activities are not permitted. Individuals engaged in such activities in violation of the law are liable in accordance with Art. 14.1 Code of Administrative Offenses of the Russian Federation and Art. 171 of the Criminal Code of the Russian Federation. See art. 48 of the Law of the Russian Federation of July 10, 1992 N 3266-1 “On Education”.

Denis Sidorkov

Is it possible to provide services without registering as an individual entrepreneur?

• Lawyer's answer:

  Yes, in principle, there is nothing wrong... For carrying out business activities without state registration as an individual entrepreneur or without state registration as a legal entity. persons may be subject to an administrative fine in the amount of five hundred to two thousand rubles. and even then, it is necessary to prove repetition, i.e. the provision of services 2 or more times during the calendar year. In addition, the fact of receiving remuneration must also be proven. And if you are going to do exactly what you indicated in one of the comments, it is almost impossible to prove all this together, unless your friends themselves hand over the Pro Art. 171 of the Criminal Code of the Russian Federation I do not mention at all....

Dmitry Maxin

Question about bank cards, to be more precise about transferring money to them.... If money is transferred to my salary card from my account and from the person who transfers (my brother) I withdraw 1% of the amount for cashing out (transfer to the card, both to my own and on mine) then am I subject to any other tax? that is, do I still need to pay tax on this money? After all, in fact, it turns out that he simply withdraws money to his salary card.

• Lawyer's answer:

  The fact that you “withdraw 1% for cash” is illegal (Article 171 of the Criminal Code of the Russian Federation, illegal entrepreneurship). For such operations a banking license is required. Transactions such as “cash out” are generally illegal. Banks charge fees for cash withdrawals Money, but you are not a bank. As for taxes, the technology for unconditional information exchange for small amounts does not yet exist. In other words, the State Tax Inspectorate today is not able to track trillions of transactions, but sooner or later this will be done and then you are required to prove (for example, with a receipt from your brother) that this transfer was not income.

Nadezhda Kolesnikova

Selling vodka at night. If I sell alcohol from home as an individual to an individual, then I face a fine of 3 to 5 thousand... that is, the approximate daily revenue, so you don’t have to worry too much and sell calmly? occasionally paying fines... after all, there is criminal liability if my act entailed consequences or brought great profit?

• Lawyer's answer:

  Criminal liability can only arise for an act (action or inaction) directly provided for by the Special Part of the Criminal Code of the Russian Federation. “If it brought great profit” - this is from Art. 171 of the Criminal Code of the Russian Federation, which provides for liability for carrying out business activities without registration or without a license. But this is a slightly different topic

Irina Tarasova

Illegal private medical practice. What punishment? Teacher-defectologist. Home visit. The fine for the practice itself seems to be about 2000 rubles. What penalties will there be from the tax office?

• Depending on the scale, illegal business activities entail administrative (Article 14.1 of the Code of Administrative Offenses of the Russian Federation) or even criminal (Article 171 of the Criminal Code of the Russian Federation) liability

Alena Zhuravleva

do you need a license to carry out educational activities if a person wants to open his own office in.... do you need a license to carry out educational activities if a person wants to open his own office for teaching measures fire safety????

• Lawyer's answer:

  Individual labor activity is not subject to licensing, including vocational training. However this activity is subject to registration, since it is accompanied by the receipt of income and is considered as entrepreneurial. If a person carries out such activities without registering in the manner prescribed by law, and the income received exceeds 250 thousand rubles. , there are grounds for bringing him to criminal liability under Art. 171 of the Criminal Code of the Russian Federation. Initially, an educational license is issued for a period of up to 3 years, but not longer than the term of the registered lease agreement. At the request of the applicant, an educational license may be issued for a shorter period

Elena Dmitrieva

If I buy things and sell them in my apartment, is it illegal?

• Of course, illegal business - see Article 171 of the Criminal Code of the Russian Federation. There are, however, reservations about licensing activities, causing major damage and making profits on a particularly large scale.

Veronica Kolesnikova

how much do they give a person if he illegally distributes alcoholic products?

• Lawyer's answer:

  The question does not disclose what the illegality is. If this term refers to the distribution (sale) of alcohol by an individual, then this act is administrative offense, which is regulated by Art. 14.1 of the Code of Administrative Offenses of the Russian Federation “Carrying out entrepreneurial activities without state registration or without a special permit (license). If this term means some kind of violation during implementation, then this act falls under Article 14.19 of the Code of Administrative Offenses of the Russian Federation. If these acts caused major damage or income was generated on a large scale or on an especially large scale, then such acts fall within the scope of the criminal code (Article 171 of the Criminal Code of the Russian Federation), which provides for penalties ranging from fines to imprisonment for up to 5 years.

Yaroslav Makankovsky

Not a legal entity, produces designs and products to order. To what extent is this illegal, and what are the penalties?

• Depending on the scale of illegal business (the amount of income received from it), liability can be either administrative (Article 117 of the Tax Code of the Russian Federation provides for a fine of 10% of the income received during a specified time as a result of such activity, but not less than 20,000 rubles. Conducting activities without registering with the tax authority for more than 90 calendar days entails a fine in the amount of 20% of income received during the period of activity without registration for more than 90 calendar days, but not less than 40,000 rubles. registration, or in violation of registration rules) is prescribed in Article 171 “Illegal entrepreneurship" of the Criminal Code of the Russian Federation. The law establishes the following consequences of such activity: a fine of up to 300,000 rubles; compulsory work for a period of 180 to 240 hours; arrest for a period up to 6 months and for a snack In accordance with paragraph 2 of Article 171 of the Criminal Code of the Russian Federation, if entrepreneurial activity without registration was carried out by a group of persons, or brought in income on a particularly large scale, then the fines will be higher and the sanctions more severe: a fine of in the amount from 100,000 to 500,000 rubles. ; imprisonment for up to 5 years with a possible fine of up to 80,000 rubles

Artem Mazukhin

• Yaroslav Troyanov

  Good afternoon If you open an online store and do not register as an individual entrepreneur, what is the penalty? Good afternoon If you open an online store and do not register as an individual entrepreneur, what is the penalty? and how is this calculated in general?

• • Lawyer's answer:

    Starting your own business or illegal entrepreneurship new business , it is developing, but at the very beginning you underestimated such “little things” as registering your activities with the relevant government bodies. Then, most likely, your actions are recognized as illegal business activity. As a result, your business will turn into a criminal offense. In order to accurately understand the question of whether your actions are legal business activity, let’s consider: what is legal business activity and what is its difference from illegal business. Entrepreneurial activity is independent, carried out on your own risk is an activity aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law. It follows from the definition that a person who intends to engage in entrepreneurial activity in accordance with the law is obliged to register with as a legal entity or individual entrepreneur. At the same time, it is not always possible to unambiguously determine whether the activity of a particular person is entrepreneurial or not, since the law does not establish what should be understood as systematic profit-making. For example, if a person during the year received income from two transactions for the purchase and sale of property acquired by him for sale, then can we say that the person’s activities are aimed at systematically generating profit, i.e., that this is an entrepreneurial activity? or other activity to business in each specific case it is necessary to find out the specifics of the legal relations that have arisen, assess the duration and intensity of retaliatory actions, establish the amount of profit received and other factors. Only a complete analysis of all the circumstances of the activity will allow one to correctly qualify the actions performed by a person. However, in any case, the final resolution of disputes arising on this issue always remains with the judicial authority. And yet, if your activity, unfortunately, can be classified as illegal business, the current legislation in this case provides for administrative and even criminal liability. Carrying out business activities without registration or in violation of registration rules, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale (over 250 thousand). rub.) - 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 one hundred eighty to two hundred forty hours, or by arrest for a term of four to six months. The same act, committed by an organized group or associated with the extraction of income on an especially large scale (over 1 million rubles), is 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 year to three years or imprisonment for a term of up to five years with a fine 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. All of the above actions are considered criminal if certain conditions are met. Firstly, if these acts caused major damage to citizens, organizations or the state. Secondly, if these actions are associated with the extraction of income on a large scale. Performing the same actions in the absence of these conditions entails administrative liability. The most heated debate is the question of what constitutes large income as a sign of illegal entrepreneurship. According to the note to Art. 171 of the Criminal Code of the Russian Federation, income is considered large when its amount exceeds two hundred and fifty minutes

Yaroslav Puchkov

What is the punishment for illegal business activities?

• Lawyer's answer:

  five hundred rubles fine, . Carrying out business activities without state registration or without a special permit (license) 1. Carrying out business activities without state registration as an individual entrepreneur or without state registration as a legal entity - entails the imposition of an administrative fine in the amount of five hundred to two thousand rubles. (as amended by Federal Law No. 116-FZ of June 22, 2007) (see text in the previous edition) http://www.consultant.ru/popular/koap/13_15.html#p4334 © ConsultantPlus, 1992-2012 criminal liability according to Art. 171 of the Criminal Code of the Russian Federation is a rare thing: Note. In the articles of this chapter, with the exception of Articles 174, 174.1, 178, 185 - 185.6, 193, 194, 198, 199 and 199.1, large amount, large damage, income or debt in a large amount are recognized as cost, damage, income or debt in the amount exceeding one million five hundred thousand rubles, especially large - six million rubles. http://www.consultant.ru/popular/ukrf/10_31.html#p2649 © ConsultantPlus, 1992-2012

Evdokia Gerasimova

• Lawyer's answer:

  It is unlikely that you will face anything for such a gamble. Only if you go too far. But in general, responsibility for this is provided for in paragraph 2 of Art. 116 of the Tax Code of the Russian Federation: carrying out activities by an organization or individual entrepreneur without registration with the tax authority entails a fine in the amount of 10 percent of the income received during the specified time as a result of such activity, but not less than 40 thousand rubles. And also in paragraph 1 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation: carrying out business activities without state registration as an individual entrepreneur or without state registration as a legal entity shall entail the imposition of an administrative fine in the amount of five hundred to two thousand rubles. And even in the Criminal Code of the Russian Federation (clause 1 of Article 171): carrying out business activities without registration, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale (more than 1,500,000 rubles), is punishable by a fine in the amount up to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to two years, or by compulsory work for a term of up to four hundred eighty hours, or by arrest for a term of up to six months.

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