Legal status of an individual entrepreneur. Legal status of an individual entrepreneur in the Russian Federation

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Ministry of Education and Science of the Russian Federation

Federal State Budgetary Educational Institution

higher professional education

Course work

Legal status individual entrepreneur

Introduction

Conclusion

Applications

individual entrepreneur farmer registration

Introduction

The transition of the Russian Federation to a market economy gave citizens the freedom to exercise entrepreneurial activity, for which they are granted a wide range of rights: to have property on the right of ownership; inherit and bequeath property; engage in entrepreneurial activities and other other activities not prohibited by law; create legal entities independently and jointly with other citizens and legal entities; make any transactions not prohibited by law, etc.

Entrepreneurial activity can be carried out in the form of a legal entity and an individual entrepreneur.

The simplest and most common form of entrepreneurial activity is the use of the status of an individual entrepreneur.

The purpose of the work is to determine the status of an individual entrepreneur

Tasks:

- establish signs of an individual entrepreneur

- identify the features of the legal status of individual entrepreneurs

- to reveal the essence of the peasant economy

- consider the procedure for registering as an individual entrepreneur

- study the procedure for registering as an individual entrepreneur

- study the procedure for termination as an individual entrepreneur.

The object of the study is individual entrepreneurship and the activities of entrepreneurs.

The subject of the study is the civil-legal status of an individual entrepreneur.

The research methodology and methodology is based on general scientific methods such as: dialectical, historical, logical, functional, analysis, synthesis, generalization, comparative, observation, sampling method, as well as private scientific methods: comparative legal, formal legal.

The theoretical basis of this study is the main provisions of the science of civil law, the general theory of law, the history and philosophy of law.

Chapter 1. Business entity without formation of a legal entity

1.1 The concept and features of individual entrepreneurship

The first part of the Civil Code of the Russian Federation states that civil law regulates relations between persons engaged in entrepreneurial activity, or with their participation. The Civil Code of the Russian Federation comprehensively defines the essence of entrepreneurial activity: it is an independent activity carried out at one’s own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (clause 1, article 2 of the Civil Code of the Russian Federation).

A sole trader is a natural person registered to conduct business.

Individuals engaged in entrepreneurial activities without forming a legal entity, but not registered as individual entrepreneurs in violation of the requirements of the civil legislation of the Russian Federation, in the performance of duties assigned to them by the Tax Code, are not entitled to refer to the fact that they are not individual entrepreneurs.

The right of citizens to engage in entrepreneurial and any other activities not prohibited by law is provided for in Art. eighteen Civil Code Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and is one of the components of legal capacity. Citizens can also have property on the right of ownership; inherit and bequeath property; create legal entities independently or jointly with other citizens and legal entities; make any transactions that do not contradict the law and participate in obligations; choose a place of residence; have the rights of authors of works of science, literature and art, inventions and other legally protected results of intellectual activity; have other property and personal non-property rights.

At the same time, Art. 2 of the Civil Code of the Russian Federation determines that entrepreneurial activity is an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services.

A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur. Entrepreneurial activities of citizens carried out without forming a legal entity are accordingly subject to the norms of civil legislation that regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

A citizen who carries out entrepreneurial activities without forming a legal entity and who is not registered as such is not entitled to refer, in relation to transactions concluded by him at the same time, to the fact that he is not an entrepreneur.

Carrying out activities as an individual entrepreneur does not imply an obligation to create any organization ( entity). An entrepreneur is an independent subject of civil legal relations. In this case, the concepts of "individual entrepreneur" and "entrepreneur without forming a legal entity" (PBOYuL) are synonymous.

Analyzing this concept, the following features can be distinguished. The first of these is the implementation of activities for the purpose of making a profit. Each owner of property has the right to freely dispose of it at his own discretion for his own benefit, which is expressed, as a rule, in the use of the fruits and receipt of income from the property. The second sign of entrepreneurial activity is the systematic implementation of it. The main obstacle is the lack of a legal definition or established custom in understanding systematicity. At the same time, there are two extreme approaches to the definition of the concept. Linguists argue that "systematic means constantly repeating, incessant", and the legislator, for example, in labor relations defines "systematic violations labor discipline"those for which penalties were applied at least once during the year, that is, an event that occurred at least twice fits into the concept of "systematicity". The next (third) indisputable sign of entrepreneurial activity is its implementation at your own risk, that is, under own property liability. Such a risk includes the entrepreneur as the owner of the property not only taking on adverse consequences that may occur, but also an additional (specific entrepreneurial) risk in obligations. The responsibility of the entrepreneur is increased, adverse consequences are assigned to him, which arose not only through his fault However, the legislator still does not explain in any way: what is risk, as well as why it was necessary to associate the concept of entrepreneurship with risk.

As the last sign of entrepreneurial activity, the legislator in Art. 2 of the Civil Code highlights its implementation by persons registered in this capacity in the manner prescribed by law. With the semantic fidelity of this feature, it is very inaccurately located legally and technically. As a result of a literal interpretation of the mentioned norm, it turns out that the implementation of independent, at their own risk, activities aimed at the systematic receipt of profit by persons who are not registered as entrepreneurs, is not entrepreneurship.

Thus, entrepreneurial activity is recognized as an activity for the purpose of making a profit, at your own peril and risk, i.e. under own property responsibility by a person registered as an entrepreneur.

Chapter 2. Legal status of individual entrepreneurship

2.1 Features of the legal status of an individual entrepreneur

The main link in the legal status of an entrepreneur is his civil legal personality, which implies the existence of things, mandatory and exclusive legal capacity. By participating in a market exchange, an economic entity becomes a subject of law in order to most fully realize its civil legal personality. Termination, which leads to the absolute paralysis of labor, administrative and other types of legal personality.

Real legal capacity is a legal prerequisite for the formation of the material base of a commodity producer. The presence of property rights gives the entrepreneur access to both the sphere of production and the exchange of goods. Moreover, without the property assigned to him, his financial and labor functions are impossible.

The legal capacity to act consists of bargaining power and tortiousness, and is realized, first of all, in contractual relations. Civil turnover or a set of transactions, the subject of which is an entrepreneur, mediates the process of movement of goods and services. By establishing contractual links, this subject participates in the cooperation of labor and the exchange of its results.

The personal legal capacity of an entrepreneur is dictated by the individualization of commodity producers, without which market relations are impossible. Personal legal capacity is based on personal non-property rights not alienated from the buyer. Among such rights - a) the right to a name (firm); b) the right to a trademark (service mark); c) rights related to objects creative activity; d) the right to protection of honor, dignity, business reputation.

Article 23 of the Civil Code of the Russian Federation reflects the specifics of the legal status of citizens engaged in entrepreneurial activities without forming a legal entity (Articles 1, 2 of the Civil Code).

Legal capacity outlines the range of possible subjective rights and legal obligations future entrepreneur, but he can act independently in accordance with them only if he has legal capacity.

Based on paragraph 1 of Art. 21 of the Civil Code, full civil capacity arises when a citizen reaches the age of eighteen. It is this article that is usually referred to to justify the fact that a citizen has the right to engage in entrepreneurial activity from the age of 18. In other cases, two exceptions are indicated: 1) paragraph 2 of Art. 21 of the Civil Code, which provides an opportunity for a citizen under the age of 18 to acquire full legal capacity from the time of marriage (for cases where the law allows marriage before the age of 18); 2) paragraph 1 of Art. 27 of the Civil Code, which allows for the possibility of declaring, by way of emancipation, a minor who has reached the age of sixteen, fully capable by decision of the guardianship and guardianship authority or the court.

The legal personality of individual entrepreneurs should be defined as universal. They may have civil rights and bear civil obligations in any area of activity not prohibited by law. A different position contradicts Part 2 of Art. 19 and part 3 of Art. 55 of the Constitution of the Russian Federation.

But even with legal capacity and legal capacity, a citizen cannot start entrepreneurial activity (clause 1, article 23 of the Civil Code). He must acquire a subjective right to it, which arises only if there is a special legal fact - state registration.

According to paragraph 1 of Art. 23 of the Civil Code, a citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur. A citizen engaged in entrepreneurial activity, but who has not passed state registration as an individual entrepreneur, does not acquire the status of an entrepreneur (paragraph 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court RF dated July 1, 1996 No. 6/8 "On some issues related to the application of the first part of the Civil Code of the Russian Federation").

State registration itself is carried out only if the citizen has the necessary legal capacity and capacity. In paragraph 1 of Art. 2 of the Civil Code, state registration is named as one of the signs of entrepreneurial activity. However, this is not only a sign that appears after registration, but also the obligation of entities wishing to carry out or carry out entrepreneurial activities. Otherwise it would not be possible to apply Art. 171 of the Criminal Code of the Russian Federation (illegal entrepreneurship), which establishes criminal liability for carrying out entrepreneurial activities without state registration.

The reverse side of the obligation to undergo state registration is a passive obligation not to carry out entrepreneurial activities without such registration. This obligation arises directly from the law simultaneously with the right to entrepreneurial activity (an element of legal capacity) and exists within the framework of general regulatory legal relations. Such an obligation, in the event of its violation, serves as the basis for the emergence of a protective legal relationship regarding the suppression of the violation and punishment for its commission.

An individual wishing to carry out entrepreneurial activity in Russia may be registered as an individual entrepreneur in foreign country. In this case, on the basis of Art. 1202 of the Civil Code, the subjective right of such a person to entrepreneurial activity should be determined on the basis of the law of the country where the individual entrepreneur is registered. If this rule cannot be applied due to absence in the respective state compulsory registration entrepreneurs, the objective law of the country of the main place of business is subject to application.

It can be seen from the foregoing that the legal personality of an entrepreneur is constituted in the law not arbitrarily, but taking into account the established relations and goals of the legislator.

2.2 Peasant (farm) economy

Substantial changes were made to the legal status of a peasant (farm) economy by paragraph 2 of Article 23 of the Civil Code. According to the Civil Code, farms carry out their activities without forming a legal entity. Among the legal entities to which Ch. 4 of the Civil Code, they do not appear, however, it is subject to state registration peasant economy and not its head. These norms are also contained in the Federal Law of June 11, 2003 No. 74-FZ "On Peasant (Farm) Economy".

After registering a farm, its head can, without a power of attorney, make transactions on the disposal of the property of the farm, represent its interests in relations with other entrepreneurs, state and municipal bodies, public organizations, open settlement and other accounts, including foreign currency, in banking institutions, have a seal, participate in contractual relations, etc. All members of a peasant (farm) economy, including its head, must be named in the agreement on the establishment of this economy. A farm is a joint entrepreneur whose property belongs to its members on the basis of common joint ownership, unless otherwise provided by law or agreement between them (Article 257 of the Civil Code). Entrepreneurial activities of a farm carried out without forming a legal entity are subject to the rules of civil law that regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the federal law, other regulatory legal acts of the Russian Federation or the essence of legal relations.

Peasant (farm) enterprises created before the entry into force of the first part of the Civil Code, it is necessary to resolve the issue of the organizational and legal forms in which they will continue their activities. There are two possible solutions: 1) the peasant farm is transferred to the status of an individual entrepreneur; 2) the peasant economy is transformed into one of the organizational and legal forms commercial organizations which are provided for in Sec. 4 Civil Code, i.e. into a business partnership or production cooperative.

Article 7 of the Introductory Law exempts peasant (farmer) farms from paying the registration fee when registering changes in their legal status in connection with bringing it into line with the norms of part one of the Civil Code. It is obvious that such transformations must be made before January 1, 2010, since the Federal Law of June 11, 2003 No. 74-FZ provides that peasant (farm) enterprises that are created as legal entities in accordance with the Law of the RSFSR of November 22, 1990 No. 348-1 "On the peasant (farm) economy", which has become invalid, has the right to retain the status of a legal entity for the period until January 1, 2010.

The norms of this Federal Law, as well as the norms of other normative legal acts of the Russian Federation regulating the activities of peasant (farmer) farms, apply to such peasant (farmer) farms insofar as otherwise does not follow from the federal law, other normative legal acts of the Russian Federation or the essence of the legal relationship.

Thus, the economy as an association of citizens is a purely nominal entrepreneur, a kind of "sign": it has a company name under which entrepreneurial activities are carried out, bank accounts, a seal, "has" property that does not actually belong to it, and with the same property is responsible for "its own" debts, acts as a plaintiff and defendant in court, etc.

Chapter 3. Features of state registration of individual entrepreneurs

3.1 State registration of an individual as an individual entrepreneur

Citizens of the Russian Federation, as well as foreign citizens legally located on the territory of Russia and stateless persons who intend to start individual entrepreneurial activity for the first time or after the termination of such activity, must go through the procedure of state registration of a person as an individual entrepreneur. Registered, in this capacity may be individuals whose right to entrepreneurial activity is not limited by law.

The procedure for state registration of an individual as an individual entrepreneur is determined by the Federal Law "On the State Registration of Legal Entities and Individual Entrepreneurs" adopted by the State Duma on July 13, 2001.

The main objective of this law is to regulate relations arising in connection with the state registration of legal entities during their creation, reorganization and liquidation, when changes are made to their founding documents, state registration of individuals as individual entrepreneurs and state registration upon termination of activities by individuals as individual entrepreneurs.

The task of the registering authority is to verify the completeness and correctness of the execution of the documents submitted for registration, as well as the fact that the applicant has paid the state fee in the amount of 800 rubles. At the same time, the registering authority is not entitled to require any additional documents from the applicant, except for those that were provided during state registration.

State registration of an individual who has expressed a desire to engage in entrepreneurial activities without forming a legal entity in Russia is carried out by the registering body of the rural, township, district or city administration at the place of his permanent residence or temporary residence. Prior to registration, a citizen must pay a state fee, the so-called registration fee, which, in accordance with Article 333.33 of the Tax Code of the Russian Federation, amounts to 800 rubles. The registration fee is paid by an individual who has expressed a desire to engage in entrepreneurial activities without forming a legal entity.

Further, in accordance with Article 22.1 of the Law "On State Registration of Legal Entities and Individual Entrepreneurs", the following documents are submitted to the registration authority at the applicant's place of residence:

1. An application signed by the applicant for state registration of an individual as an individual entrepreneur.

This application must contain the following information: data of an individual entrepreneur in Russian (last name, first name, patronymic), gender; birth information (date and place of birth); citizenship (citizen of the Russian Federation, foreign citizen, stateless person); place of residence in the Russian Federation (namely, postal code, constituent entity of the Russian Federation, district, city, settlement, street, house number, apartment number); contact phone or fax; information about types and quantities economic activity; signature and date of submission of the application.

2. A copy of the main document of an individual registered as an individual entrepreneur (if an individual registered as an individual entrepreneur is a citizen of the Russian Federation).

3. A copy of a document established by federal law or recognized in accordance with an international treaty of the Russian Federation as an identity document of a foreign citizen registered as an individual entrepreneur (in the event that an individual registered as an individual entrepreneur is a foreign citizen).

4. A copy of a document stipulated by federal law or recognized in accordance with an international treaty of the Russian Federation as an identity document of a stateless person registered as an individual entrepreneur (in the event that an individual registered as an individual entrepreneur is a stateless person ).

5. A copy of the birth certificate of an individual registered as an individual entrepreneur. Or a copy of another document confirming the date and place of birth of the specified person in accordance with the legislation of the Russian Federation or an international treaty of the Russian Federation (if the submitted copy of the document proving the identity of an individual registered as an individual entrepreneur does not contain information about the date and place birth of said person).

6. A copy of the document confirming the right of an individual registered as an individual entrepreneur to temporarily or permanently reside in the Russian Federation, if the individual registered as an individual entrepreneur is a foreign citizen or stateless person (see Appendix 1) .

7. An original or a copy of a document confirming, in accordance with the procedure established by the legislation of the Russian Federation, the address of the place of residence of an individual registered as an individual entrepreneur in the Russian Federation. If the submitted copy of an identity document of an individual registered as an individual entrepreneur, or a document confirming the right of an individual registered as an individual entrepreneur to temporarily or permanently reside in the Russian Federation, does not contain information about such an address.

8. Notarized consent of parents, adoptive parents or guardian to carry out entrepreneurial activities by an individual registered as an individual entrepreneur. Either a copy of the marriage certificate of an individual registered as an individual entrepreneur, or a copy of the decision of the guardianship and guardianship authority or a copy of the court decision on declaring an individual registered as an individual entrepreneur as fully capable (in the event that an individual registered as an individual entrepreneur individual entrepreneur, is a minor).

9. Individual taxpayer number (TIN).

10. Receipt of payment of the state fee.

This article of the law does not contain a norm defining the features of a set of documents that could be submitted to the registration authority by adult citizens, limited by the court in their legal capacity in the manner prescribed by law, with the consent of their legal representatives. The Civil Code of the Russian Federation does not prohibit such persons from engaging in entrepreneurial activities. From the content of Article 22.1, one can conclude contradictions and provisions:

1) The Law "On State Registration of Legal Entities and Individual Entrepreneurs" does not require the voluntary consent of legal representatives of persons restricted by the court in their legal capacity to carry out their activities as an individual entrepreneur;

2) The Law "On State Registration of Legal Entities and Individual Entrepreneurs" does not allow representatives to participate in the entrepreneurial activities of an individual entrepreneur.

The decision on state registration, adopted by the registering body, is the basis for making the corresponding entry in the state register. The moment of state registration is the making by the registering body of an appropriate entry in the relevant unified state register of individual entrepreneurs.

State registration of an individual as an individual entrepreneur is carried out at the place of his residence within a period of not more than 5 working days from the date of submission of all required documents to the registration authority (Article 8 of the Law on State Registration). Not later than one working day from the moment of state registration, the registering body is obliged to issue (send) to the applicant a document confirming the fact of making an entry in the Unified State Register of Individual Entrepreneurs. In this case, such a document is a certificate of state registration of an individual as an individual entrepreneur (form No. P61001, approved by Decree of the Government of the Russian Federation of June 19, 2002 No. 439 "On approval of forms and requirements for the execution of documents used in the state registration of legal entities, as well as individual entrepreneurs).

Upon registration, the following documents are issued to an individual:

1. Certificate of registration of a citizen as an individual entrepreneur

2. Notice of registration with the tax authority.

3.2 State registration upon termination of activity by an individual as an individual entrepreneur

Termination by a citizen of activity as an individual entrepreneur is carried out in the manner prescribed by the legislation of the Russian Federation. Upon termination of activity as an individual entrepreneur, it is necessary to make an administrative act of state registration of the termination of activity as an individual entrepreneur. Such an administrative act is carried out by entering into the Unified State Register of Individual Entrepreneurs information on the termination of an individual's activity as an individual entrepreneur.

Article 22.3 of the Law on State Registration identifies six circumstances in the presence of which the registering body makes a decision on state registration of the termination of an individual's activity as an individual entrepreneur. Such a decision is made in connection with the following circumstances:

1) With the adoption personally by an individual entrepreneur of a decision to terminate this activity;

2) With the death of an individual entrepreneur;

3) With the adoption by the court of a decision on the recognition of the entrepreneur as insolvent (bankrupt);

4) With the termination of entrepreneurial activity forcibly by a court decision;

5) With the entry into force of the court verdict, which sentenced an individual entrepreneur in the form of deprivation of the right to engage in entrepreneurial activity for certain period;

6) With the cancellation of the document confirming the right of the entrepreneur (foreign citizen or stateless person) to temporarily or permanently reside in the Russian Federation, or the expiration of the said document.

Regardless of which of the above circumstances entails the adoption of an appropriate decision, state registration is carried out within a period of not more than five working days from the date of submission to the registration authority of the documents necessary for registration. The composition of the documents submitted to the registration authority varies depending on the specifics of the specific circumstances that led to the decision on state registration. Let's consider these questions in more detail.

State registration of the termination of activities by an individual as an individual entrepreneur in connection with his decision to terminate this activity is carried out on the basis of an application for state registration signed by the applicant submitted to the registering authority. This application is drawn up in the form No. P26001 (application for state registration of the termination of activities by an individual as an individual entrepreneur in connection with his decision to terminate this activity). This application form was approved by Decree of the Government of the Russian Federation of June 19, 2002 No. 439 (as amended on March 9, 2010) "On approval of the forms of documents used for state registration of legal entities and requirements for their execution."

The application is submitted by an individual entrepreneur directly or by mail to the registration authority at the place of residence of the entrepreneur who decided to stop his activity. In the case under consideration, the submission of documents for state registration is carried out in accordance with the general procedure provided for in Article 9 of the Law "On State Registration of Legal Entities and Individual Entrepreneurs".

The registering body makes a decision on state registration and makes an appropriate entry in the Unified State Register of Individual Entrepreneurs. The state registration of an individual as an individual entrepreneur becomes invalid after an entry to this effect is made in the specified register.

Not later than one working day from the date of state registration, the registering authority is obliged to issue to the applicant or send to his address by post a document confirming the fact of making an entry in the Unified State Register of Individual Entrepreneurs. Such a document is a certificate of state registration of the termination by an individual of activity as an individual entrepreneur in the form No. Р65001, approved by the Decree of the Government of the Russian Federation of 19.06.2002 No. 439 (as amended of 09.03. to their design."

State registration upon termination of the activities of an individual as an individual entrepreneur due to death is carried out on the basis of information received by the registering body in accordance with the procedure established by law on state registration of the death of this person.

The grounds for registering the death of a citizen are:

1. Document of the established form of death, issued medical organization or private practitioner.

2. The decision of the court to establish the fact of the death of a citizen or declare him dead.

State registration of the death of a citizen is carried out by the body of registration of acts of civil status according to last place residence of the deceased, the place of death, the discovery of the body of the deceased or the location of the organization that issued the death certificate. An application for death to the registry office must be made no later than three days from the date of death or from the day the body of the deceased was discovered. The registry office that carried out the state registration of the death of a citizen draws up and issues a death certificate.

Clause 7 of the Rules for Maintaining the Unified State Register of Individual Entrepreneurs dated December 22, 2011 No. 630 establishes that the basis for making an entry in the state register on state registration upon termination of activity by an individual as an individual entrepreneur in this case is information about death or recognition by a court, deceased citizen-individual entrepreneur. These norms provide, in particular, for the obligation of the bodies carrying out the registration of acts of civil status to report the facts of the death of citizens to the tax authorities at their location within 10 days after the registration of such facts.

In the event of the death of an individual entrepreneur, state registration becomes invalid from the moment of death.

An application for declaring an individual entrepreneur bankrupt can be filed with an arbitration court by a citizen-debtor, a creditor, and also by the Federal Tax Service of Russia. Creditors have the right to file such an application, with the exception of creditors for claims for compensation for harm caused to life or health, for the recovery of alimony, as well as creditors whose claims are inextricably linked to their personality.

The application of an individual entrepreneur may be accompanied by a debt repayment plan, copies of which are sent to creditors and other persons participating in the bankruptcy case. In the absence of objections from creditors, the arbitration court may approve the debt repayment plan, which is the basis for suspending bankruptcy proceedings for a period not exceeding three months.

This plan contains information on the timing of its implementation, on the amounts left monthly to the debtor and members of his family to ensure their livelihoods, on the amounts of amounts that are supposed to be sent monthly to pay off creditors' claims.

In accordance with Article 446 of the Code of Civil Procedure of the Russian Federation, execution under executive documents cannot be levied on the following property owned by a debtor citizen on the right of ownership:

1) residential premises (parts thereof), if for the citizen-debtor and members of his family living together in the owned premises, it is the only one suitable for permanent residence room;

2) land, the use of which is not related to the implementation of entrepreneurial activities by the debtor citizen;

3) ordinary items home furnishings and household items, personal items (clothes, shoes and others), with the exception of jewelry and other luxury items;

4) property necessary for the professional occupation of the citizen-debtor, with the exception of items whose value exceeds one hundred minimum wages established by federal law;

5) breeding, dairy and working cattle, deer, rabbits, poultry, bees used for purposes not related to entrepreneurial activities, as well as farm buildings and structures, feed necessary for their maintenance;

6) seeds required for the next sowing;

7) food and money for total amount not less than three times the established subsistence level of the citizen-debtor himself, persons who are dependent on him;

8) the fuel needed by the family of the debtor citizen for cooking their daily food and heating during heating season your living quarters;

9) means of transport and other property necessary for the citizen-debtor in connection with his disability;

10) prizes, state awards, honorary and commemorative signs awarded to the debtor citizen.

State registration upon termination of the activities of an individual entrepreneur in connection with a court decision to declare him insolvent (bankrupt) is carried out on the basis of a copy of the relevant court decision. This copy of the court decision is submitted to the registration authority in accordance with the procedure established by the legislation of the Russian Federation.

In accordance with the Federal Law of October 26, 2002 (as amended on July 28, 2012) "On Insolvency (Bankruptcy)", bankruptcy is the inability of the debtor recognized by the arbitration court to fully satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments .

Insolvency (bankruptcy) cases fall within the jurisdiction of arbitration courts (Article 33 of the Arbitration Procedure Code of the Russian Federation dated July 24, 2002 No. 95-FZ (as amended on June 25, 2012)) and are considered taking into account the specifics of legal proceedings in this category of cases, determined by articles of chapter 28 of the code section. Special rules governing the bankruptcy of a citizen are established by articles 202-213 of the Federal Law of October 26, 2002 (as amended on July 28, 2012) "On Insolvency (Bankruptcy)".

The basis for making a decision on state registration in this case is the decision of the arbitration court to declare the individual entrepreneur bankrupt and to open bankruptcy proceedings, a copy of which the arbitration court, in accordance with Article 216 of the Arbitration Procedure Code of the Russian Federation, is obliged to send to the body that registered the citizen as an individual entrepreneur

If an individual entrepreneur is declared insolvent (bankrupt) by an arbitration court, the state registration of such a person as an individual entrepreneur becomes invalid from the moment the above court decision is made. From the same moment, in accordance with Article 216 of the Law "On Insolvency (Bankruptcy)", the licenses issued to him to carry out certain types of entrepreneurial activity are annulled.

State registration upon termination of the activity of an individual entrepreneur forcibly is carried out on the basis of a court decision on the termination of the activity of this person as an individual entrepreneur forcibly.

In accordance with Article 25 of the Law "On State Registration", the registering body has the right to apply to the court with a request to terminate the activities of an individual as an individual entrepreneur forcibly. This appeal takes place in such cases as repeated or gross violations of laws or other regulatory legal acts regulating relations arising in connection with the state registration of individual entrepreneurs. If the court satisfies specified requirement, then a copy of the relevant court decision is sent to the registration authority.

The state registration of a person as an entrepreneur in this case is terminated by the moment the court decides to forcibly terminate its activities as an individual entrepreneur.

State registration of the termination by an individual of activity as an individual entrepreneur on the basis of the entry into force of a court sentence, by which the entrepreneur was sentenced to deprivation of the right to engage in entrepreneurial activity for a certain period, is carried out on the basis of information received by the registering body on the entry into force of such a court decision.

In accordance with Art. 390 of the Code of Criminal Procedure of the Russian Federation, the verdict of the court of first instance enters into legal force after the expiration of the period for appealing it in an appeal or cassation procedure, if it has not been appealed by the parties. Court sentence court of appeal shall enter into force after the expiration of the term for its appeal in cassation, if it has not been appealed by the parties. If a complaint is filed or presented in cassation, the verdict, unless it is canceled by the court of cassation, enters into force on the day the cassation ruling is issued in this case.

A duly certified copy of the verdict, ruling or court order that has entered into force on imposing a sentence in the form of depriving an individual of the right to engage in entrepreneurial activity for a certain period is submitted by the court to the registering authority at the place of residence of the convicted individual. The submission is made within five working days from the date of entry into force of the said judgment, ruling or court order. The state registration of a person as an individual entrepreneur becomes invalid from the moment the said court verdict enters into force.

State registration upon termination by an individual of activity as an individual entrepreneur upon cancellation of a document confirming the right of this person to temporarily or permanently reside in the Russian Federation, or upon the expiration of the said document, is carried out on the basis of information received by the registering body on the cancellation of the specified document. Or based on the expiration date.

Information about the cancellation or expiration of the document confirming the right of an individual entrepreneur to permanently or temporarily reside in the Russian Federation is submitted by the internal affairs body to the registration authority at the place of residence of the individual. Submission is carried out within five days from the date of the decision to cancel or the date of expiration of the said document in the manner established by the Ministry of Taxes and Duties of the Russian Federation (FTS of Russia) together with the Ministry of Internal Affairs.

Upon cancellation of a document confirming the right of a foreign citizen or stateless person to temporarily or permanently reside in the Russian Federation, or the expiration of the said document, the state registration of these persons as individual entrepreneurs is terminated from the date of cancellation or expiration of the relevant document.

After the termination of the state registration of an individual entrepreneur, the registration file of such a person is subject to storage in the registration authorities for 15 years.

Information about individuals who have ceased their activities as individual entrepreneurs contained in the state register is subject to deletion from the electronic database of the state register within five days from the date of making the relevant entries in the register. This information is stored on electronic media in the registration authorities during the deadlines for departmental storage. After the expiration of the prescribed storage periods, documents are transferred in the prescribed manner for permanent or temporary storage in state archives, having previously passed the examination of their value.

Conclusion

The attention given to small businesses today is not accidental. It is this sector of the economy that is as mobile as possible, able to quickly respond to market changes and society's demands, and make quick and accurate decisions in crisis situations. Most of these enterprises operate in the real sector of the economy, that is, they create real products and services.

The right of a citizen to engage in entrepreneurial and any other activity is the content of civil legal capacity. In order to exercise this right, a citizen must have the so-called entrepreneurial capacity, i.e. the ability to independently, proactively and professionally carry out entrepreneurial activities and perform all duties arising in connection with its implementation. Entrepreneurial capacity of a citizen arises when he reaches the age of eighteen, i.e. from the moment he becomes fully capable.

One of the advantages of entrepreneurial activity without forming a legal entity is that the tax rates for income received from this type of entrepreneurship are in some cases much lower than for legal entities. This suggests that the state policy in the field of development and support for the institution of entrepreneurial activity is great and the status of an individual entrepreneur is growing, along with the improvement of the Russian economy as a whole.

List of used literature

Regulations

1. the federal law dated 11/15/1997 No. 143-FZ (as amended on 07/28/2012) "On acts of civil status"

2. Federal Law No. 127-FZ of October 26, 2002 (as amended on July 28, 2012, as amended on October 16, 2012) "On Insolvency (Bankruptcy)"

Monographs and books

3. Vislova A.V. Individual entrepreneur: accounting and taxation of different types of activities: a practical guide / A.V Vislova. - M.: Omega - L, 2009. - 339 p.

4. Kasyanov A.V. Handbook of an individual entrepreneur: a book / A.V. Kasyanov, D.V. Kislov, O.A. Kurbangaleev; ed. A.V. Kasyanov. - 22nd ed., revised. and additional - M.: GrossMedia, 2011. - 246 p.

5. Kirov A.A. Individual Entrepreneur: A Practical Guide / A.A. Kirov. - M.: Prospect, 2010 - 432 p.

6. Lapusta M.G. Entrepreneurship: textbook / M.G. Lapusta. - M.: INFRA-M, 2008. - 608 p.

7. Malko A.V. Big legal dictionary / A.V. Malko. - M.: Prospekt, 2009. - 703 p.

8. Rubin Yu.B. Professional Entrepreneurship Course: A Primer for high school. Part 1 / Yu.B. Rubin.- M.: Market DS, 2008. - 400 p.

9. Simonenko V.D. Fundamentals of entrepreneurship: textbook / V.D. Simonenko. - M.: Vita - Press, 2009. - 176 p.

10. Titov V.I. Enterprise Economics / V.I. Titov. - M.: Eksmo, 2008-414 p.

11. Tikhomirov M.Yu. Individual entrepreneur. Legal status and activities / M.Yu. Tikhomirov. - M.: Tikhomirov M.Yu, 2009 - 88 p.

Internet resources

12. tax code of the Russian Federation: part two of 05.08.2000 No. 117-FZ (as amended on 02.10.2012) / Legal server "Consultant Plus" / [Electronic resource] / Access mode: www.consultant.ru

13. On state registration of legal entities and individual entrepreneurs: federal law of 08.08.2001 No. 129-FZ / Legal server "Consultant Plus" / [Electronic resource] / Access mode: www.consultant.ru

14. Rules for maintaining the Unified State Register of Individual Entrepreneurs of October 16, 2003 No. 630 (as amended on December 22, 2011) / Legal server "Consultant Plus" / [Electronic resource] / Access mode: www.consultant.ru

15. URL: http://ru.wikipedia.org/wiki/Individual_entrepreneur

Applications

Appendix 1

Appendix 2

Annex 3

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Who are "individual entrepreneurs"

The right of citizens to engage in entrepreneurial activity is enshrined in the Civil Code of the Russian Federation (Article 23).

Any capable citizen of Russia over 18 years of age has the right to organize activities whose purpose is the systematic extraction of profit. That is, become an entrepreneur.

From what moment does the legal status of IP arise? Please note that the status of an individual entrepreneur appears only after official registration. Accordingly, the legal status comes from the moment the federal tax service issues the certificate of registration as an entrepreneur to the applicant. Entrepreneurial activity without registration on the territory of Russia is prohibited and punishable by law.

The right of citizens to engage in entrepreneurial activity is enshrined in the Civil Code of the Russian Federation.

Registration of IP status

Currently, registering as an individual entrepreneur with the federal tax service and obtaining the appropriate certificate is quite simple. The best way to do this is through the public services portal.

Find the section "Registration of legal entities and individual entrepreneurs" on the portal. Fill out the form provided by the portal. You will also need to upload scanned documents - a copy of the passport and receipts for payment of the state fee.

You can also check the status of an individual entrepreneur through the electronic register of legal entities. To do this, you will need to enter the TIN of the entrepreneur or his full name indicating the region. Such a service is sometimes necessary for counterparties to check the details of the entrepreneur, or for the businessman himself to find out whether his registration was successful or, vice versa, whether the termination of the status has come into effect.

Sole Proprietor is a natural or legal person

Consider the features of the legal status of IP. Let's start with how an entrepreneur differs from a legal entity. Often the question is: To whom are individual entrepreneurs closer - to legal entities or to individuals?

The answer to this question is quite simple - an individual entrepreneur is not a legal entity and has rights and obligations that are different from it, but at the same time it has specific differences from an individual. IP is a special status that implies a specific taxation regime, the risk of loss and loss of property, and some other features.

Features of the status of an entrepreneur

Consider what constitutes the civil law status of an individual entrepreneur:

The legality of the IP status is confirmed by the presence of official registration with the tax service. Entrepreneurial activity conducted without official registration is prosecuted by law.
The legal personality of citizens engaged in the systematic extraction of profit stems from the fact that they have property rights - the right to benefit from their own property, as well as from the right guaranteed by the Constitution to apply their own knowledge and skills for self-realization.
The income of an entrepreneur is in no way limited by law, as well as his right to use any property that is in civil circulation for profit.
In case of losses due to the fault of commercial organizations or authorities, the entrepreneur has the right to apply to the arbitration court for their compensation.
The legal status of an individual entrepreneur allows you to conduct business personally, and also allows you to hire employees (from 5 to 250 people, depending on the size of the enterprise).
In accordance with the requirements of Russian legislation Individual entrepreneurs cannot engage in certain sectors of the economy:
- production and retail alcohol;
- insurance;
- banking;
- investment funds;
- non-state pension funds;
- security activities, production and circulation of weapons (ammunition);
- television and radio broadcasting;
- space industry.
Entrepreneurs operate at their own risk. In the event of loss or bankruptcy, they are liable with personal property (with the exception of a few categories of property). The following are not subject to withdrawal:
- the only living space (however, this does not apply to mortgages);
- items for personal use;
- property necessary in professional activities;
- breeding animals and seeds, even if not used in the main activity;
- money in the amount necessary to support the family (living wage), as well as food.

An individual entrepreneur is not a legal entity and has rights and obligations that are different from it, but at the same time it has specific differences from an individual.

Other IP rights

Russian legislation gives individual entrepreneurs a number of rights and privileges. Some of them we have named previous section, but also note that:

Individual entrepreneurs do not pay personal income tax (for more details on taxes, see the relevant section).
The activities of the IP are counted in the length of service.
An entrepreneur is also entitled to work under an employment contract (except for a number of “prohibited” positions). He can also act as a founder of a legal entity, participate and create public organizations.
The right to use the seal and the current account, but also the right to refuse them.

Responsibilities of individual entrepreneurs

However, in addition to rights and benefits, entrepreneurial activity involves a number of specific duties, the failure to fulfill which will necessarily entail problems.

Payment of taxes and mandatory insurance payments several times a year, including for hired employees.
Change financial statements within the time limits established by law.
It is forbidden to combine entrepreneurial activity with state and municipal service. If a former entrepreneur plans to enter the state or municipal service, a certificate of the absence of the status of an individual entrepreneur will be proof of the completion of his independent activity. You can also issue this document on the official website of the tax service.
The status of an individual entrepreneur is not inherited, however, a businessman has the right to transfer to his heirs all the property and means of production necessary for work.

How self-employed people pay taxes

A very important issue regarding the legal status of individual entrepreneurs is the payment of taxes and mandatory payments. First, let's look at what categories of taxes and contributions are required. They can be conditionally divided into 3 categories:

Income tax (instead of personal income tax). The amount depends on the tax regime.
Pension and health insurance. The amount of these payments is fixed. Pension - 26645 rubles + 1% of income if it exceeds 300 thousand rubles. Medical - 5840 rubles.
Transport and land tax in the presence of the specified property are paid according to the rules for individuals.

A very important issue regarding the legal status of individual entrepreneurs is the payment of taxes and mandatory payments.

Simplified taxation system

The most profitable and therefore common taxation system for individual entrepreneurs is the simplified tax system., the so-called "simplification". In this case, income tax is paid either at a rate of 6% of income or at a rate of 15% of working capital. An entrepreneur on a “simplified” system does not pay personal income tax and VAT, but pays insurance and personal income tax in the amount of 13% for his employees.

Taxation according to UTII

The imputed activity tax is calculated using a formula based on the basic income and activity rate, as well as the inflation rate. It is 15% of imputed income. Under this taxation regime, personal income tax and VAT are also not paid, and 13% is paid from the income of employees.

Filling out a payment order

Which one should indicate the status of the IP payer when filling out payment order? Due to the fact that the legislation very strictly regulates the scope of paying taxes and other obligatory payments, errors in filling out are unacceptable. Remember that individual entrepreneurs indicate the code "08" when making payments to the Pension Fund and the Social Insurance Fund, "02" when paying personal income tax.

Also note that IP pays personal income tax for employees. What status should be specified then? With contributions for employees - "09". Since 2018, the status of an individual entrepreneur in payments on the simplified tax system is indicated by the code "09". The status is indicated in the topmost line of the payment order in the "101" field.

How often do you have to pay taxes

Individual entrepreneurs pay taxes 4 times a year - by quarters. For the first - in April, for the second - in July, for the third - in October, for the fourth - in the first months of the next year. Also, before April 30 (sometimes the deadline can be postponed for several days due to holidays and weekends), you need to submit a tax return.

The most common case of loss of IP status is the refusal of the citizen himself to engage in entrepreneurship and the submission of an appropriate application.

How can I lose the status of an individual entrepreneur

Loss of IP status is possible in several situations. The most common is the refusal of the citizen himself from doing business and filing an appropriate application. Cancellation of state registration takes place on the same day. Other reasons for deprivation of status include:

bankruptcy;
admission to the state and municipal service;
partial or complete incapacity of a citizen;
death.

Conclusion

The legal status of an individual entrepreneur gives a citizen a specific set of rights and obligations. It has a special tax regime. The legality of activities for independent profit-making is determined by the presence of state registration.

An entrepreneur is an intermediate link between an individual and a legal entity. This organizational and legal form is suitable for start-up businessmen and small businesses. However, note that Russian legislation prohibits entrepreneurs from operating in certain industries.

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

In the literature, the opinion was expressed that the concepts of "unincorporated entrepreneur" and "individual entrepreneur" do not coincide. Entrepreneurial activity as an economic phenomenon can be carried out by an individual without state registration. For example, by virtue of paragraph 4 of Art. 23 of the Civil Code of the Russian Federation, a citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of this article is not entitled to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of the Code on obligations related to the implementation of entrepreneurial activities.

In addition, some scholars include the so-called private practitioners (lawyers, detectives, notaries) among entrepreneurs without forming a legal entity. Although the current legislation does not consider notarial and advocacy activities as entrepreneurial.

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

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

The following conclusion of the Constitutional Court of the Russian Federation is also interesting: the assignment of private notaries as subjects of tax obligations to the same group with individual entrepreneurs follows from the peculiarities of the status characteristics of private notaries. In particular, in the decisions of the Constitutional Court of the Russian Federation of May 19, 1998 and December 23, 1999, it is noted that the activities of those involved private practice notaries and lawyers - a special legal activity that is carried out on behalf of the state, which predetermines the special public law status of notaries (lawyers).

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

Thus, the definition of individual entrepreneurs given in the Tax Code of the Russian Federation has a special terminological meaning, and those contained in paragraph 2 of Art. 11 norms-definitions are intended for use solely for taxation purposes. Independent regulatory value - as a norm of direct action - par. 4 p. 2 art. 11 of the Tax Code of the Russian Federation does not have. This is the general conclusion of the Constitutional Court of the Russian Federation on the complaint of a private notary.

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

First, it is necessary to comprehensively assess the proposal to consider as individual entrepreneurs individuals engaged in entrepreneurial activities without state registration. Indeed, from an economic point of view, such activity is entrepreneurial, since it meets all the necessary properties.

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

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

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

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

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

In relation to illegal entrepreneurship, in our opinion, it is correct to use the phrase "a person engaged in entrepreneurial activity without state registration."

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

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

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

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

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

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

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

The authors of the commentary to the Civil Code of the Russian Federation (under the editorship of Prof. O.N. Sadikov) contrast the universal legal capacity of an individual entrepreneur and the special legal capacity of the head of a peasant (farm) economy. We believe that there are no grounds for such opposition to legal capacity.

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

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

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

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

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

In theoretical and practical terms, it is interesting the question of the possibility of adult citizens, limited in capacity due to the abuse of alcohol and drugs, to engage in entrepreneurial activities. By virtue of Art. 30 of the Civil Code of the Russian Federation under the restriction of legal capacity should be understood as the deprivation by the court of a citizen of the right to perform the following actions without the consent of the trustee:

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

Receive directly wages, pension and other types of income (royalty, remuneration for discoveries, inventions, etc.). Any other restrictions on the capacity of a citizen Art. 30 of the Civil Code of the Russian Federation does not contain, i.e. civil law does not prohibit these persons from engaging in entrepreneurial activities. Moreover, the consent of the trustee is not required here.

Individuals engaged in entrepreneurial activities without forming a legal entity have the right to use hired labor. The former Law of the RSFSR "On Enterprises and Entrepreneurial Activities" (clause 3, article 2) prohibited individual entrepreneurs from using hired labor.

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

Licensing is considered in the literature not only as a type of powerful public activity. Licensing is the way (method) state regulation entrepreneurial activity.

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

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

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

In accordance with paragraph 1 of Art. 861 of the Civil Code of the Russian Federation, settlements with the participation of citizens that are not related to their entrepreneurial activities can be made in cash (Article 140) without limiting the amount or by bank transfer. In turn, settlements between legal entities, as well as with the participation of citizens, related to their entrepreneurial activities, are made in a non-cash manner, unless otherwise provided by law. However, at present there are no restrictions or prohibitions on settlements with the participation of citizens-entrepreneurs in cash. set by the Bank of Russia size limit cash settlements in the Russian Federation between legal entities in one transaction (the specified amount is subject to change).

Collection of property and Money from the accounts of individual entrepreneurs is made only in court.

There are other advantages and benefits that make it very attractive to use a sole proprietorship in business. Therefore, it is hardly possible to recognize as convincing the opinion of some scientists and practitioners on the abolition of the individual form of entrepreneurship.

Entrepreneurship is special kind economic activity, which is understood as an activity aimed at making a profit, based on independent initiative, responsibility and an innovative entrepreneurial idea.

From a formal legal point of view, an entrepreneur is only a citizen who is engaged in entrepreneurial activity and is registered in this capacity by the state. At the same time, the Civil Code of the Russian Federation fixed the so-called presumption of entrepreneurial activity of a citizen. It consists in the fact that a citizen engaged in entrepreneurial activity, but not registered as an entrepreneur, is not entitled to refer to the transactions concluded by him at the same time that he is not an entrepreneur. The court may apply the rules on obligations related to entrepreneurial activity to such transactions.

From the point of view of public law (criminal and administrative), entrepreneurial activity carried out by a person who is not registered as an entrepreneur is illegal entrepreneurship.

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

legal capacity (ability to have civil rights and bear obligations)

civil capacity (the ability to acquire and exercise civil rights by one's actions, to create civil obligations for oneself and fulfill them);

have a name;

have a place of residence.

The main feature is civil capacity. On this basis, citizens are divided into the following groups:

incapacitated - minors under 6 years of age and recognized by the court as suffering from mental disorders, which do not make it possible to understand the meaning of their actions or control them;

not fully capable - minors from 6 to 14 years old and minors from 14 to 18 years old;

persons with limited capacity - recognized by the court as abusing alcohol or drugs;

fully capable - adults who have reached the age of 18, or emancipated.

Features of the status of an individual entrepreneur acting without the formation of a legal entity, in comparison with the general civil legal capacity of a citizen, are as follows:

1) this status is acquired from the moment of state registration of a citizen as an individual entrepreneur. A citizen who is actually engaged in entrepreneurial activity, but has not been registered, does not acquire the status of an individual entrepreneur. Therefore, disputes involving such citizens are not under the jurisdiction of the arbitration court, but the court of general jurisdiction.

2) the rules of the Civil Code of the Russian Federation, which regulate the activities of legal entities that are commercial organizations, are accordingly applied to the entrepreneurial activities of these citizens, unless otherwise follows from the law, acts of the President and the Government of the Russian Federation or the essence of the legal relationship.

3) an individual entrepreneur has the right to conclude employment contracts. Persons working under an employment contract are included in the number of creditors of an individual entrepreneur.

4) property disputes between individual entrepreneurs or between them and legal entities are under the jurisdiction of the arbitration court, but only related to entrepreneurial activity.

5) an individual entrepreneur who is unable to satisfy the claims of creditors related to the implementation of entrepreneurial activities by him may be recognized as insolvent (bankrupt) by a court decision.

6) the claims of creditors, in the event that an individual entrepreneur is declared bankrupt, are satisfied at the expense of his property.

However, individual entrepreneurs have a lot in common with non-entrepreneurial citizens. This allows us to conclude that the legal status of individual entrepreneurs is on the border of the powers of ordinary citizens and commercial organizations.

Unlike legal entities, the property of an individual entrepreneur, constituting the objects of entrepreneurial activity, can be inherited. But the right to engage in entrepreneurial activity is not inherited. Considering that an individual entrepreneur in the legal field is between individuals and legal entities, one should be attentive to the spread of the norms of Russian legislation to him. In this regard, there is a different experience in the application of legislation in judicial practice with the participation of individual entrepreneurs. 5

There are the following definitions of the term "individual entrepreneur":

Individual entrepreneurs - (entrepreneurs without forming a legal entity or abbreviated PBOYuL) - are individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity (clause 2 of article 11 of the Tax Code of the Russian Federation).

IP (private entrepreneur) - a business entity, organizational and legal form provided for by the legislation of the Russian Federation for the conduct of commercial (entrepreneurial) activities by citizens registered in the prescribed manner. Formerly in legislative acts In the Russian Federation, equivalent concepts were used - "entrepreneur without forming a legal entity (PBOYuL)", "private entrepreneur", which at the moment have been successively replaced by the term "individual entrepreneur".

An individual entrepreneur is a citizen engaged in initiative, independent activity (within the framework not prohibited by law), carried out on his own behalf, under his own property responsibility, the purpose of which is to make a profit or personal income.

The entrepreneurial function is the business of a private business person. However, not everyone business man is an entrepreneur. From a socio-economic point of view, an entrepreneur is a type of "upstart". He is a revolutionary in the economy, an unwitting initiator of social and political revolutions. Being an entrepreneur means doing things differently than others do. The entrepreneur is devoid of tradition. He must have a specific set of qualities: common sense, constancy, knowledge of people, management talent.

The entrepreneur uses his organizational, managerial abilities for only one purpose - to make a profit. Therefore, in life, citizens who engage in commerce episodically, without any documents giving them the right to engage in this activity, call themselves entrepreneurs, for example, persons reselling goods. If a citizen engages in such activities occasionally, without pursuing profit, he cannot be regarded as an entrepreneur and should not be registered as such.

Entrepreneurship has the following distinctive features, allowing to distinguish it from the composition of the labor factor into an independent factor of production:

This is an initiative, independent activity aimed at combining all factors of production and coordinating their use in order to make a profit by producing the goods necessary for society;

People engaged in entrepreneurship are guided by the markets of goods, services, new technologies, they are able to acquire and use the necessary information in order to achieve high results;

The activities are associated with the risk of losing their investments in production and the possible non-recoupment of efforts invested in new projects.

From a legal point of view, an entrepreneur is only a citizen who is engaged in entrepreneurial activity and is registered in this capacity.

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

1) legal capacity (ability to have civil rights and bear obligations);

2) legal capacity (the ability to acquire and exercise civil rights by one's actions);

3) have a place of residence (a place where a citizen resides permanently or predominantly).

Individual entrepreneurs have general legal capacity and can engage in any type of entrepreneurial activity, except for those prohibited by law.

The status of an individual entrepreneur is acquired as a result of state registration of a citizen as an individual entrepreneur. To register, you must have legal capacity.

Full legal capacity arises, firstly, from the moment he reaches the age of majority, secondly, from the time of marriage until the age of eighteen (Article 21 of the Civil Code of the Russian Federation), thirdly, from the moment a person who has reached sixteen years of age is recognized as emancipated (Article .27 of the Civil Code of the Russian Federation).

However, clause 1 of Article 27 of the Civil Code of the Russian Federation defines one of the conditions for declaring a minor who has reached the age of 16 fully capable, the exercise of entrepreneurial activity by him. A literal reading of this norm indicates that by the time of reaching the indicated age, the minor is already engaged in such activities, that is, this is already a fait accompli.

As you can see, a minor incapacitated citizen can also be registered as an individual entrepreneur.

Based on the meaning of Article 26 of the Civil Code of the Russian Federation, which determines the possibility of making certain transactions by citizens aged 14 to 18 with the written consent of their legal representatives, we conclude that an individual who has reached 14 years of age can become an individual entrepreneur.

An individual entrepreneur, like a commercial legal entity, acts on his own behalf and makes any trade transactions not prohibited by law, i.e. those transactions that are related to the implementation of entrepreneurial activities are carried out systematically or constantly and are aimed at making a profit.

An individual entrepreneur is liable for his obligations with all his property, with the exception of that property, which, in accordance with civil procedural legislation, cannot be levied. Moreover, an individual entrepreneur who has not fulfilled or improperly fulfilled an obligation related to the implementation of entrepreneurial activity is liable regardless of fault. He is released from liability only if he proves that the proper performance of the obligation was impossible due to force majeure. At the same time, such circumstances do not include, in particular, violation of obligations by the debtor's counterparties, lack of goods on the market necessary for execution, lack of the necessary funds from the debtor.

An individual entrepreneur has the right to use hired labor. Formerly acting Russian law"On Enterprises and Entrepreneurial Activity" expressly forbade the use of hired labor by a citizen-entrepreneur.

Entrepreneurial activity carried out at one's own risk implies the economic independence of a citizen and the closely related responsibility of an individual entrepreneur for the results of his activity.

The individual entrepreneur carries out economic activity at his own expense, bears full property responsibility for its results, manages his own enterprise, is completely independent in the organization and development of his business, single-handedly decides on the distribution of income received after taxes.

An individual entrepreneur has the right to engage in any type of entrepreneurial activity that is not prohibited by law. At the same time, he can engage in certain types of activities, the list of which must be determined by law, only on the basis of a special permit (license). People who are psychologically not adapted to submission often create their own business. They cannot work in systems where there are bosses behind their backs, where they have to do their part of the work without feeling the final results of their work. The motivation for entrepreneurship among those who have found themselves calling for this is often the desire for freedom - material freedom, freedom to influence their own position, freedom to influence the activities of their company, freedom to influence their niche in the market. They do all the work in their small business, their income may not be great, but they are proud to be the source of what is happening, the owners.

Legal status of an individual entrepreneur. Legal status of an individual entrepreneur in the Russian Federation

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Course work

Legal status individual entrepreneur

Introduction

Conclusion

Applications

individual entrepreneur farmer registration

Introduction

Entrepreneurial activity can be carried out in the form of a legal entity and an individual entrepreneur.

The simplest and most common form of entrepreneurial activity is the use of the status of an individual entrepreneur.

The purpose of the work is to determine the status of an individual entrepreneur

Tasks:

- establish signs of an individual entrepreneur

- identify the features of the legal status of individual entrepreneurs

- to reveal the essence of the peasant economy

- consider the procedure for registering as an individual entrepreneur

- study the procedure for registering as an individual entrepreneur

- study the procedure for termination as an individual entrepreneur.

11. Tikhomirov M.Yu. Individual entrepreneur. Legal status and activities / M.Yu. Tikhomirov. - M.: Tikhomirov M.Yu, 2009 - 88 p.

Internet resources

12. tax code of the Russian Federation: part two of 05.08.2000 No. 117-FZ (as amended on 02.10.2012) / Legal server "Consultant Plus" / [Electronic resource] / Access mode: www.consultant.ru

13. On state registration of legal entities and individual entrepreneurs: federal law of 08.08.2001 No. 129-FZ / Legal server "Consultant Plus" / [Electronic resource] / Access mode: www.consultant.ru

14. Rules for maintaining the Unified State Register of Individual Entrepreneurs of October 16, 2003 No. 630 (as amended on December 22, 2011) / Legal server "Consultant Plus" / [Electronic resource] / Access mode: www.consultant.ru

15. URL: http://ru.wikipedia.org/wiki/Individual_entrepreneur

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