Legal status of an individual entrepreneur: features, pros and cons. Legal status and registration of an individual entrepreneur in the Russian Federation

Entrepreneurial activity of a citizen is understood as such activity carried out directly by a citizen registered as individual entrepreneur in the manner prescribed by law.

Both citizens of the Russian Federation and foreign citizens and stateless persons (stateless persons) can act as individual entrepreneurs equally. Foreign citizens and stateless persons can be registered as individual entrepreneurs only if they legally reside temporarily or permanently on the territory of the Russian Federation.

Individuals with civil capacity in in full the right to carry out entrepreneurial activities without anyone's consent. Minors from 14 to 18 years of age with partial legal capacity can register as entrepreneurs if they have a notarized consent of their legal representatives to carry out entrepreneurial activities.

The legal status of an individual entrepreneur is determined based on the fact that, along with commercial organizations, he is a full participant in economic turnover. A citizen who is an individual entrepreneur carries out entrepreneurial activity speaking under his own name.

To the entrepreneurial activity of citizens carried out without education legal entity, legal regulations governing the activities of commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

Individual entrepreneurs have the right to conclude any business contracts, with the exception of those contracts for which exemptions are provided directly by law. Persons engaged in individual entrepreneurship may be participants in general partnerships, as well as conclude agreements on joint activities (simple partnership).

Cases involving citizens engaged in entrepreneurial activities and having the status of an individual entrepreneur acquired in the manner prescribed by law, along with other economic disputes and cases related to the implementation of entrepreneurial and other economic activities, are considered by the arbitration courts of districts (clause 2, article 27 of the APC of the Russian Federation ).

For their obligations, individual entrepreneurs are liable with all their property, which may be levied. This means that the collection of debts of an individual entrepreneur can be imposed both on his personal property and on a share in common property that do not participate in economic turnover. The list of property that cannot be levied for the obligations of a citizen, including an individual entrepreneur, is contained in Art. 446 Code of Civil Procedure of the Russian Federation.

A citizen-entrepreneur carries out entrepreneurial activity by his own labor. But the activity of an individual entrepreneur can be carried out with the use of hired labor. Features of the regulation of the labor of citizens working for employers - individuals, are established by a separate chapter. 48 of the Labor Code of the Russian Federation.

The legal status of an individual entrepreneur in Russia is regulated by a number of legal acts, including the norms of the Constitution and federal law. The legal status is the civil legal status of an individual entrepreneur, distinguishing him from other active subjects in the Russian economy.

Its foundations are the responsibility, obligations and rights of individual entrepreneurs, enshrined in the regulatory provisions of the Civil Code of the Russian Federation (CC RF), the law "On registration of legal entities and individual entrepreneurs", Tax Code(NK RF). Features of the status of an entrepreneur are also enshrined in other legislative acts.

Legal personality of an individual entrepreneur

Possibility of implementation legal rights and duties of an individual entrepreneur is revealed through the concepts of legal capacity and delictual capacity. Currently, there is no legal definition of the legal and legal capacity of an individual entrepreneur: Art. 17 and 21 of the Civil Code of the Russian Federation disclose this concept only in relation to citizens, and Art. 48 - only legal entities.

The Russian legal doctrine has long eliminated this gap in rule-making. According to Art. 23 of the Civil Code of the Russian Federation, each citizen can engage in private entrepreneurship without registering his own company (LE), but with registration as an individual entrepreneur. At the same time, most of the legislative norms that establish the peculiarities of the status of merchant organizations have been adapted to IP. It turns out that entrepreneurial legal and legal capacity are categories that coincide at the moment of occurrence: the ability to bear obligations and have rights and real opportunity their actions to implement them arise for any person from the moment he passes the registration procedure and becomes an individual entrepreneur (by analogy with a legal entity). The same applies to the possibility of individual entrepreneurs to be responsible for their illegal actions (delictual capacity).

All these legal definitions combined together is the civil legal personality of an individual entrepreneur. In civil law, such a concept, due to its capacity and convenience, is most often used in relation to any kind of entrepreneurs.

Features of the legal status of an individual entrepreneur without registration

An interesting point is that any person can be recognized as having the legal status of an individual entrepreneur even in the absence of state registration. People who constantly provide services and perform work on transactions with the population often do this for the purpose of making a regular profit.

They are required by law to register. But in order to evade taxes, avoid increased liability (compared to the liability of individuals) or out of banal ignorance, such irresponsible citizens do not enter the appropriate state register. Then, in the event of improper, incomplete performance of obligations to counterparties and the occurrence of litigation on this basis, the court has the right to apply the same rules to the agreement of the parties as if the executor on it was an individual entrepreneur.

Certain exceptions to the general principles regarding legal status individual entrepreneurs are provided to persons who are engaged in commerce in the agricultural sector. They may not be registered as individual entrepreneurs, but there must be an agreement between such citizens on the creation of a farm (peasant) economy. Such a farm will not be considered a legal entity. There is only one additional condition- Only an individual entrepreneur is capable of heading a farmer's association. The rules on transactions of a commercial organization with legal exceptions always apply to contracts concluded by peasant farms.

Registration of a citizen as an individual entrepreneur

The freedom of entrepreneurship is guaranteed by Article 34 of the Russian Constitution.

Any citizen can use his skills, knowledge and his property to actively participate in the economic turnover. At the same time, he must act in good faith, observe the prohibitions on employment certain types business, as well as acquire the appropriate legal status of an entrepreneur.

The general provisions of the Civil Code of the Russian Federation provide for the only basis for doing business by citizens without forming a legal entity - state registration.

This process and the bodies to which you need to contact those who want to do own business, are described in detail in federal law"On state registration of legal entities and individual entrepreneurs" N 129-FZ.

The registration process is authorized body information about a citizen, an individual entrepreneur, in the relevant federal register - Unified State Register IP (EGRIP). This register contains a list of all entrepreneurs in Russia indicating their last name, first name and patronymic, gender, date and place of birth, place of residence, individual taxpayer number (TIN) and types of activity (according to OKVED), some other information that individualizes IP.

The only body authorized to register entrepreneurs in the Russian Federation is the Federal Tax Service (FTS RF), which is under the jurisdiction of the Ministry of Finance of the Russian Federation. A citizen who is going to register his entrepreneurial status must apply to the inspectorate of the Federal Tax Service of the Russian Federation at his place of residence and have the following documents with him:

1. An application signed by the applicant, executed in accordance with the Order of the Federal Tax Service of the Russian Federation dated January 25, 2012, N ММВ-7-6 / [email protected]
2. A copy of the identity document of a citizen and which is his main document (copy of a passport or other document if the person is a foreigner or stateless person).
3. A copy or original of a document that contains confirmation of the address of one's place of residence (if one has a passport of a citizen of the Russian Federation, a copy of the corresponding page).
4. If the person is a minor, then the written consent of the legal representatives (parents, guardians, etc.) of such a person to engage in entrepreneurship, certified by a notary; or a copy of the marriage certificate (to confirm emancipation); or a copy of the decision government agency or court, which establishes the full legal capacity of a minor.
5. A copy of the document confirming the payment of the state fee (according to Article 333.33 of the Tax Code of the Russian Federation, the fee for registration as an individual entrepreneur is 800 rubles; it can be paid through branches of most banks, ATMs, payment offices during inspections of the Federal Tax Service of the Russian Federation).
6. A certificate confirming the presence or absence of a criminal record, the fact of criminal prosecution, or containing information on rehabilitation in the event that the future activities of the individual entrepreneur will be related to education, upbringing, medical care minors, children's and youth sports, etc.
7. If you want to work in the above areas related to the development of the child, you must have a positive decision of the commission on minors in the relevant subject of the Russian Federation.

During the registration process, the legal status of business entities has not yet been formalized. Only the moment of final registration gives rise to the right to do business, to conduct business on behalf of the individual entrepreneur.

Documents are usually transferred directly to the inspectorate of the Federal Tax Service of the Russian Federation. But there are more convenient ways. Documents can be sent by registered mail, sent through the multifunctional submission center public services, send to in electronic format with a mandatory certificate of electronic signature via the Internet. If all papers are transferred through a representative, it is necessary to certify all the signatures of the applicant on each document in the notaries.

Registration deadlines and final decision

The legislator has provided employees of the inspections of the Federal Tax Service of the Russian Federation with a sufficiently short time to carry out the registration procedure and verify all submitted documents. According to Article 8 of the Law "On Registration of Legal Entities and Individual Entrepreneurs", registration must take place within 5 days (working days) from the date the applicant submits all the necessary documents.

Based on the results of the study of the submitted papers, the authorized tax inspector forms a decision on registration or refusal to register individual as an IP. If everything is in order with the documents, then the inspector draws up his decision and enters information about the new individual entrepreneur into the USRIP. During the business day following the decision, the newly-minted businessman is notified of a positive decision with a copy of it attached, confirming that the information is in the register. From that moment on, a citizen becomes an individual entrepreneur and can safely carry out his economic activity in a new capacity.

The right of a citizen to appeal against the decision of the Federal Tax Service of the Russian Federation

One of the most important civil rights is the right to protection both in court and out of court. The decision to refuse registration as an individual entrepreneur is usually first appealed to a higher tax authority - the tax office of a city or a constituent entity of the Russian Federation, but the legislator also allows an appeal immediately to the court. A complaint can be filed before the expiration of 3 months from the date of receipt of a decision to refuse state registration or from the date of receipt of information in a different format about the violation of one's rights. A complaint against a decision of a higher inspection is filed within the same time limits, only from the moment the decision on the previous complaint is received. The deadline for filing a complaint if it is missed, if there is a good reason, is restored by a higher tax authority.

The complaint is filed in the same manner as the documents for registration. Its mandatory details are:

• Full name of the potential individual entrepreneur, his place of residence;
• information regarding the refusal to grant IP status;
• the full name of the tax inspectorate that made the appealed decision;
• claims and claims of the complainant.

In addition, your arguments can be supported by any necessary written evidence: documents, certificates.

The term for consideration of the complaint should not exceed 15 working days. It is extended only if necessary by the head of the tax office within 10 working days. Based on the results of consideration of the complaint, the higher inspectorate of the Federal Tax Service of the Russian Federation can either satisfy the applicant's requirements and cancel the initial decision, or leave the complaint unsatisfied. The final decision must be communicated to the applicant within the next working day after its issuance.

If a decision is made in favor of a potential individual entrepreneur, the body that made the initial decision to refuse registration must complete all necessary registration actions within 5 days according to the initial documents and enter information about the new entrepreneur into the EGRIP.

If the decision on the complaint is not made in favor of the person, then you should forget about the further legally prescribed appeal to higher tax authorities and you need to apply to the court. In practice, higher inspectorates always take the side of their lower colleagues, and only competent work in court hearings, it can tip the scales in favor of persons wishing to acquire the legal status of individual entrepreneurs.

Entrepreneurs who want to implement their ideas and make a profit from it are required, first of all, to legalize their activities by going through the state registration procedure. At this point, there are difficulties with the choice of the organizational and legal form of doing business. To make a decision, you need to weigh all the advantages and disadvantages existing forms organizations, but not everyone is aware of what it means to become an individual entrepreneur, and what is meant by its legal status.

Sole Proprietor - individual or legal entity

Those who have not come across the concept of "individual entrepreneur" before would like to figure out who an individual entrepreneur is - an individual or a legal entity. According to the definition given in Article 23 of the Civil Code of the Russian Federation, an individual entrepreneur is a citizen engaged in entrepreneurship without forming a legal entity. It turns out that an individual entrepreneur cannot be classified as a legal entity.

When registering an individual entrepreneur, a citizen not only retains his status as an individual - from the moment the enterprise is legalized, he acquires specific rights and obligations.

An individual entrepreneur has a unique legal status that combines the rights of ordinary citizens and legal entities

It can be concluded that individual entrepreneurs should be classified as a separate group of persons who have rights and obligations acquired in connection with the start of business management, but at the same time are equated with individuals in all other sectors of life.

Definition and characteristics of entrepreneurial activity

Entrepreneurship - an activity that is registered in accordance with applicable laws, begins as a business owner willing to take risks in order to regularly make a profit and consists in performing any work, providing services or selling goods to the population.

The main features of the work of entrepreneurs:

1. Only citizens registered with the tax authorities who have received the right to be called individual entrepreneurs apply for its implementation. If there was no registration, the activity does not cease to be called entrepreneurial, but is recognized as illegal. This should be understood in such a way that a person will not be relieved of the need to pay debts to those with whom he entered into an agreement, the fact that at the time of the transaction he was not an individual entrepreneur. The court will not be on his side.
2. Independence (organizational and property).
3. Extraction of profit (the list of methods for obtaining it is closed).
4. The presence of risk (in case of illiterate business management or by chance, circumstances may arise that will cause the loss of the property acquired by the individual entrepreneur).

Employees are not considered entrepreneurs - their activities do not have the above signs of entrepreneurship.

Legal status of IP

The civil legal status of an individual entrepreneur means the legal status of an individual entrepreneur in the field of commercial relations, which affects the list of his rights, obligations and level of responsibility and determines their position in the system of legal relations, taking into account the specifics and nuances of their conduct economic activity.

The Constitution of the Russian Federation promises the citizens of Russia the freedom to use their own skills, ideas and savings to organize their own business or realize themselves in other areas of work, if this is not prohibited by Russian laws.

The Constitution of Russia gives every inhabitant of the country the right to use knowledge, skills and savings in order to implement commercial activities permitted by applicable law

The legal status of an individual entrepreneur is characterized by duality - at the same time, regulations related to all ordinary residents of the country and business entities are applicable to its work.

The right to engage in entrepreneurship arises from the date of registration of a citizen of the Russian Federation, a foreigner or a stateless person as an individual entrepreneur.

If a person wants to be engaged in cattle breeding or growing cultivated plants, entrepreneurship will take the form peasant economy, which is also not a legal entity.

The heads of a peasant (farm) economy are required to undergo state registration and obtain the official status of an individual entrepreneur

Entrepreneurial legal capacity and legal capacity appear at the same time, and the right to entrepreneurship is exercised exclusively independently - it does not happen that an incapacitated person becomes legally capable due to the fact that a legal representative has assumed part of his obligations.

The right to organize their business as an individual entrepreneur has:

• capable citizens (without obtaining anyone's consent);
• partially capable minor citizens 14 years of age and older (after obtaining the written consent of legal representatives, certified by a notary) and minors who have entered into an official marriage or emancipated by a court decision or guardianship and guardianship authorities.

The law prohibits the following groups of people from opening a company:

1. Those who are in the public service, law enforcement officers, the military.
2. Already registered IP.
3. Deprived of the right to conduct business on the basis of judgment if the ban has not expired.
4. The enterprise of which was forcibly closed, if 12 months have not passed after the entry into force of the court decision.
5. Those who had a criminal record or were prosecuted in the past for criminal acts, after which, according to the law, it is impossible to engage in certain types of business (for example, those convicted of murder do not have the right to open children's institutions) or entrepreneurship in general.
6. Stateless persons and foreigners who are on the territory of the country without legal grounds (temporary residence permit, residence permit).

The law limits individual entrepreneurs in choosing an occupation. For example, the alcohol trade is available only to business owners who have registered an LLC.

Individual entrepreneurs do not have the right to sell alcohol and medicines, to open a security company and to some other activities

IP performs actions from own name and subject to the same legal regulations that apply to work commercial companies(unless it contradicts the essence of the legal relationship or legislative norms).

IP is given the right to enter into any legal commercial contracts. Also, business owners can participate in general partnerships and team up with companies non-profit organizations for joint activities.

Individual entrepreneurs have the right to conduct business on their own, without the involvement of hired workers, or they can hire personnel for the enterprise.

Individual entrepreneurs have the right to hire employees or work independently without the involvement of hired labor

Individual entrepreneurs pay off the accumulated debts with all the property they own as owners - owned in full or by shares in joint ownership that are not involved in business affairs. Only the property listed in Art. 446 Code of Civil Procedure of the Russian Federation:

Features of the legal status of IP

laws that would contain Full description the essence of the civil law status of IP, no. Regional laws are adopted with the expectation of the most active growth of small enterprises, but at the federal level no single regulatory act has been adopted.

The status of an individual entrepreneur occupies an intermediate position between the position of commercial organizations and individuals. Individual entrepreneurs are participants in economic turnover who themselves have not formed any economic entity. In this regard, the legal status of an individual entrepreneur is special and has its own distinctive features.

Existing laws emphasize the special position of individual entrepreneurs, but they have to rely on a huge number of regulations in order to determine the rules and conditions for doing business.

IP rights and benefits

An individual entrepreneur has certain rights and has benefits established at the federal and regional levels. By the way, regional authorities often provide assistance to the development of entrepreneurship.

1. The right to engage in any legitimate commercial activity for financial gain.
2. An individual entrepreneur in certain situations can act as an individual. For example, when operating a car in the course of business activities, an individual entrepreneur transfers transport tax to the Federal Tax Service on an equal basis with all car owners.
3. An individual entrepreneur has the right to apply to the Arbitration Court (as an individual entrepreneur) and to courts of general jurisdiction (as a citizen of the Russian Federation).
4. Income can be used in any amount for personal needs by the individual entrepreneur and his family.
5. IP is exempt from the calculation and transfer to the personal income tax budget.
6. The individual entrepreneur has the right to hire employees.
7. The law allows IP:
   • work on labor contract(but not in any position),
   • become a founder of an LLC,
   • establish or participate in public organizations,
   • exercise all the rights available to ordinary citizens.
8. An individual entrepreneur has the right to make his own seal imprint and open a current account, but is not obliged to do either one or the other.
9. An individual entrepreneur and members of his family have the right to use the property involved in the work of the enterprise for personal needs.

Responsibilities and Restrictions of the IP

The status of an individual entrepreneur imposes certain obligations on its owner, and from the side of the legislation some restrictions are imposed on its work:

1. An individual entrepreneur must pay taxes and fees in accordance with the terms of the taxation regime he prefers, as well as make payments to the FSS, PFR.
2. Individual entrepreneurs are required to submit reports on time as commercial firms.
3. Individual entrepreneurs must take on the role of tax and insurance agent for the employees they hire, withhold funds from their wages to pay insurance premiums and personal income tax.
4. Individual entrepreneurs are subject to a ban on combining business activities with public service, work in the prosecutor's office and other authorities.
5. An individual entrepreneur does not have the right to use real estate acquired during marriage if the spouse did not give him consent to this.
6. The law limits individual entrepreneurs in the choice of types of economic activity. In particular, they are prohibited from selling medicines and alcoholic drinks and open a security agency.
7. The individual risks everything he owns. The property of an individual entrepreneur is not divided into personal and participating in business.
8. An individual entrepreneur is not entitled to transfer the right to engage in entrepreneurship by inheritance; after his death, only property passes to the heir.

IP and marriage contract

Family people who are going to register themselves as an individual entrepreneur should take into account one more thing related to property and future earnings. In addition to the fact that an individual entrepreneur is not entitled to use real estate purchased during the marriage without the prior consent of the husband (wife), in the event of a divorce, the income of the individual entrepreneur and the property used in the course of business management will be divided in half.

In the event of a divorce, half of the income of the entrepreneur and property involved in commercial activities will go to the former spouse

The fact that the registration of an individual entrepreneur took place even before receiving a certificate from the registry office will not matter. Therefore, if there is any doubt about the strength family relations you should protect your business by signing a marriage contract, which would directly specify the procedure for dividing the property in the event of a break in family ties.

Acquiring the legal status of an individual entrepreneur

The right to open a company is associated with the need to pass the state registration of the business owner as an individual entrepreneur and register it with the Federal Tax Service of the Russian Federation.

Passing state registration as an individual entrepreneur is a sufficient condition for acquiring the status of an individual entrepreneur

To do this, it is necessary that the legal capacity of a person is not limited in relation to opening his own company:

• he must reach the age at which entrepreneurial legal capacity occurs;
• a potential individual entrepreneur should not hold the position of a state or municipal employee, judge, etc.;
• a citizen should not be limited in the ability to do business by a court decision;
• a person should not be declared partially or completely incompetent on the basis of, for example, a medical opinion that he has a mental disorder.

Registration is carried out at the place of residence and is a mandatory and sufficient condition for acquiring the official status of an individual entrepreneur. The procedure must be completed in the division of the Federal Tax Service of Russia serving the corresponding territorial entity.

Acquisition of the legal status of an individual entrepreneur by a minor

In Russia, not only persons who have reached the age of 18 have the right to become entrepreneurs, but also minors in the country. But for this they will need to comply with the requirements established by law.

The legislation of Russia allows minor citizens to register as an individual entrepreneur if there are grounds for recognizing them as capable

The right to register an individual entrepreneur for minors arises if there are grounds for declaring it legally capable:

1. Entering into a legal marriage (in the event of a divorce, legal capacity remains).
2. Emancipation (recognition as fully capable by the court or guardianship and guardianship authorities in the absence of parental consent).
3. Consent of both parents, adoptive parents or guardian to conduct business activities.

The minor must additionally attach one of the following documents to the standard set of papers:

1. Notarized copy of the marriage.
2. The decision of the guardianship and guardianship authorities to recognize the teenager as capable.
3. The decision of the court on the onset of full legal capacity.
4. Notarized written consent of legal representatives. If only one of the parents (adoptive parents) granted a business permit, the following is additionally provided:
   • death certificate of the second parent (if one of the parents has died),
   • a court decision on recognizing a citizen as missing (if the location of one of the parents is not established),
   • birth certificate without information about the father (if the child was brought up in an incomplete family).

In any case, a teenager cannot apply for registration as an individual entrepreneur until he is 14 years old. This is justified by the fact that Art. 28 of the Civil Code of the Russian Federation prohibits persons under the age of 14 from entering into transactions related to commercial activities. And for registration with the Federal Tax Service and registration of a company, a passport is required, which can be obtained no earlier than the specified age.

Termination of the legal status of IP

Termination of the status of an individual entrepreneur is also associated with a number of conditions that must be observed, and occurs at the time of putting a mark in the Unified Register (EGRIP) on the completion of its activities by employees of the Federal Tax Service.

Do not confuse the concepts of termination and suspension of the IP - in the second case, the business owner does not carry out commercial activities for various reasons, but has the right to resume business.

The law allows an entrepreneur to renounce the status of an individual entrepreneur on any day by voluntary refusal from further work as such. For this you will need:

• draw up an application in the form P26001,
• provide a receipt for payment of state duty,
• submit tax return from the beginning of the last reporting period to the date of completion of the IP,
• report the completion of economic activities to extra-budgetary funds.

To terminate the status of an individual entrepreneur, in addition to own desire There may be other legitimate reasons:

• death of an individual entrepreneur;
• decision by the court to close the enterprise;
• recognition of an individual entrepreneur as bankrupt (insolvent) in a judicial proceeding;
• the entry into force of a court verdict, according to which a sanction is imposed on an individual entrepreneur in the form of deprivation of his rights to conduct business for a certain period of time;
• cancellation of a document (or expiration of its validity), on the basis of which a foreign citizen or stateless person resided in Russia on a temporary or permanent basis.

If one of the above reasons for closing a company occurs, the state registration of an individual entrepreneur becomes invalid. Refusal of the IP status does not release the former businessman from obligations under contracts that were signed during the operation of his enterprise.

Termination of activity as an individual entrepreneur does not release the entrepreneur from his obligations under contracts concluded during the period of work

Positive aspects of the legal status of IP

The organizational and legal form of an individual entrepreneur in some aspects of doing business, when compared with an LLC, has a number of concessions, plus an individual entrepreneur is able to exercise some rights that ordinary residents of the country are deprived of. Within the scope of this article, we will limit ourselves to positive aspects entrepreneurship, due to the specific legal status of IP.

Advantages of an individual entrepreneur over ordinary citizens

The status of an individual entrepreneur expands the possibilities of an ordinary individual, largely due to the fact that:

1. An individual entrepreneur has the opportunity to conduct commercial activities, while concluding transactions and regularly making a profit.
2. Individual entrepreneurs do not have to pay personal income tax.

Advantages of individual entrepreneurs over legal entities

If we compare individual entrepreneurs and LLCs in terms of the advantages of the organizational and legal form, it turns out that in general it is easier for entrepreneurs to start doing business and further develop the business:

Disadvantages of the legal status of IP

Obviously, in addition to the advantages of the legal status of IP, there are also negative aspects:

Video: IP or LLC (pros and cons)

Speaking about the legal status of an individual entrepreneur, it is necessary to supplement it with the rights and obligations of an ordinary citizen in parallel. People who want to organize their own business, but refuse to register themselves as individual entrepreneurs, are stopped by the fear of property liability. However, honest activity without attempts to evade obligations and a realistic view of the risks involved can protect the business owner from the adverse consequences of inept entrepreneurial work. In general, some aspects of the legal status of individual entrepreneurs contribute to the rapid development of business, while others hinder this. The main thing is to correctly use its advantages.

Whatever the industrial or commercial activity, it is always regulated by certain laws, starting with the Constitution and ending with local regulations. At the same time, legal entities have the same rights and obligations, which differ significantly from the rights and obligations of individuals. At the same time, an individual entrepreneur (IE) has the features of both one and the other subject. Accordingly, the rules governing the activities of both individuals and legal entities can be applied to it. All this creates its own peculiarities of the legal status of an individual entrepreneur, which will be discussed further.

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The nature of duality

Such a dual legal status of an individual entrepreneur has developed due to the peculiarities of national legislation. According to paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, any citizen in the country has the right to engage in entrepreneurial activity without registering a legal entity. Thus, he has the right to officially profit from business activities. However, there is a difference between a legal entity and an individual entrepreneur - the latter has fewer opportunities to conduct commercial activities.

But such limited freedoms are compensated by preferential taxation, independently manage, in addition to their own property, the property of their enterprise. To better understand the features of those and other signs of IP, let's take a closer look, compare similar points.

Similarity to a legal entity

The law states that as a citizen Russian Federation, and a non-resident can engage in entrepreneurial activities on its territory, but only if this activity is registered with the tax authorities. Until the relevant certificate is obtained, such activities are recognized as illegal.

When a citizen receives the status of an individual entrepreneur, he has the following duties and rights:

• He can conduct entrepreneurial activities only within the framework outlined by the current legislation. Full list possible areas of such activities are outlined by a special OKVED reference book. Please note that there is a list possible types activities in which the individual entrepreneur is not authorized to engage. This is any area of ​​military activity, production and sale medicines, alcohol and more.
• Use of personal property in commercial activities. For example, by personal transport you can deliver goods or go for the provision of services.
• Settlement account, printing. These are signs that are fundamental for a legal entity, an individual entrepreneur can also have, but at will. Although in the case when he decides to work for UTII, they are a prerequisite. This mode assumes the presence of printing or cash register duly registered. Then the individual entrepreneur gets the opportunity to correctly fill out the necessary reporting forms. But if the activity of an individual entrepreneur is not related to the sale of goods, you can do without them.
• An individual entrepreneur is allowed to hire employees, but then he must independently make the necessary deductions for taxes and funds.

The legal status of an individual entrepreneur allows him to simultaneously open legal entities, work as an employee, and establish charitable organizations. The only thing is that an individual entrepreneur cannot hold a municipal or state position.

resemblance to an individual

At the same time, an individual entrepreneur has quite broad rights that are usually vested in an individual. First of all, they include the ability to use personal property for business purposes. Also, he may not pay personal income tax while his certificate of an individual entrepreneur is valid. But he is still obliged, like a legal entity, to pay all the payments provided for by the chosen taxation system.

In addition, the similarities and differences in statuses are as follows:

• If an entrepreneur has a spouse, then they can dispose of their property only with their written permission. This applies to both common property and that which is used for commercial purposes.
• The responsibility of the IP bears more as an individual, if you do not take into account the necessary fees for the pension fund and taxes.
• Full responsibility for loans, regardless of who they were issued to - an individual or an individual entrepreneur. If he cannot repay the loans, his personal property is sold if the amount of his assets is greater than the debt. There is a whole list of property that cannot be sold and alienated under any circumstances.

If an individual is engaged in commercial activities without formalizing it properly, upon detection of such actions, he bears legal and financial responsibility as an individual entrepreneur.

Features of the trial

According to this duality, the question arises, how and where can an entrepreneur protect his interests? After all, legal entities resolve disputes in arbitration courts, and individuals - in courts of general jurisdiction. What should an entrepreneur do who has the signs of these two subjects? To solve this dilemma, the legislator recommends proceeding from each disputable situation individually. So, if in one situation an entrepreneur defends his rights as an individual, it is necessary to apply to a court of general jurisdiction. If his rights are affected, as a legal person - to arbitration.

Features of the legal status

Today's laws do not clearly define when a person is engaged in commercial activities and when not. On the one hand, any work that has the goal of making a profit is entrepreneurial. But after all, a citizen can, for example, sell his property not by himself, but through authorized persons or companies. Unfortunately, there is still no single list of rules that would regulate these issues.

It is also assumed that the individual entrepreneur is engaged in such activities systematically. But, without documents, it is difficult to say when and with what frequency the entrepreneur carried out such activities. Therefore, if the question does not concern taxation and various mandatory contributions, it is difficult to determine the legal status of an individual entrepreneur. Therefore, the main feature by which an IP is determined is its registration in pension fund, tax office.

IP benefits

Of course, underground business activities have a number of advantages. But when compared with the consequences that arise when such activity is discovered, the benefit is doubtful.

But, having legally issued an IP, a citizen receives a number of advantages. These include:

• An individual entrepreneur is the sole owner of the business, except for the need to have permission to operate with property from the spouse.
• There is no need to hold meetings of shareholders, fees and so on.
• Reporting is submitted according to a simplified system.
• Registration is fast and inexpensive. To get a certificate, it is enough to have 800 rubles. and in stock five business days. When registering an LLC, for example, it is necessary to contribute 4 thousand rubles to the budget.
• An individual entrepreneur is exempt from property tax, which is intended for commercial activities.
• Taxation on a preferential basis. An individual entrepreneur does not pay 13% personal income tax, but pays 6% for simplified taxation or 15% for UTII.

There may also be other preferential conditions that are accepted locally by the authorities. It helps to develop small business in the country.

Limitations and difficulties

In addition to various rights, benefits and benefits, an individual entrepreneur also receives a number of duties, has a special level of responsibility. First of all, it includes the ability to attract personal property to pay off debts that arose in the course of entrepreneurial activity.

When specifying the scope of responsibilities of an IP, the following should be mentioned:

• There are certain restrictions for individual entrepreneurs by type of activity, as already mentioned above.
• One entrepreneur cannot be registered in the name of several owners, as is the case with a legal entity.
• An individual entrepreneur must personally participate in the conduct of business, or appoint an executive director with the right to sign.
• The entrepreneur must make contributions to the funds even if he works at a loss or does not work at all.

Status effective date

It is important for a future entrepreneur to know not only his rights, obligations, status advantages and features. One more important nuance- the moment of entry into force of the status of an entrepreneur. It is considered to be the day when a certificate of granting him the status of an individual entrepreneur was issued to an individual, as well as a USRIP record sheet. Only from that moment he has the right to openly and officially engage in commercial activities.

In the event that it is discovered that he has been driving it up to this point, he bears administrative responsibility in the form of a fine from two to 20 minimum wages.

Grounds for closing an IP

Speaking about the legal status of an individual entrepreneur, it is definitely worth mentioning the issue of the termination of his commercial activities. As a rule, the basis for this is a personal decision. It is issued in the form of an appropriate application, drawn up on the form No. P26001. You will also have to pay a state duty in the amount of 160 rubles, that is, 20% of the registration fee. When the tax termination decision is made, the register indicates information that this individual entrepreneur has ceased operations.

In addition to the listed nuances, he can finish his work on the following grounds:

• The expiration of the document that allows non-residents to stay on the territory of the Russian Federation.
• Expiration of the IP certificate.
• Bankruptcy court decision.
• A court decision to ban business activities for a specific period in connection with criminal or administrative offenses.
• Death of a citizen registered as an individual entrepreneur.

What are the features of the legal status of an individual entrepreneur? Many people planning to start their own business are faced with the choice of its organizational and legal form. Let's consider what advantages and disadvantages the status of an entrepreneur has, as well as what you need to know before proceeding with its official registration?

Who are "individual entrepreneurs"

The right of citizens to engage in entrepreneurial activity is secured Civil Code 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 may be necessary for contractors 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 taken 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:

1. 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.
2. 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.
3. The income of an entrepreneur is in no way limited by law, nor is his right to use any property that is in civil circulation for profit.
4. In case of losses due to the fault of commercial organizations or authorities, the entrepreneur has the right to apply to court of Arbitration for their reimbursement.
5. 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).
6. 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.
7. 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:

1. Individual entrepreneurs do not pay personal income tax (for more details on taxes, see the relevant section).
2. The activities of the IP are counted in the length of service.
3. The entrepreneur may also work on 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.
4. 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 implies a number of specific duties, the failure to fulfill which will necessarily entail problems.

1. Payment of taxes and mandatory insurance payments several times a year, including for hired employees.
2. Change financial statements within the time limits established by law.
3. It is forbidden to combine entrepreneurial activity with state and municipal service. If 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.
4. 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:

1. Income tax (instead of personal income tax). The amount depends on the tax regime.
2. 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.
3. 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 the rate of 6% of the income or at the rate of 15% of the 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 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.