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

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

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

Krasnodar Regional Court (Krasnodar Territory) - Criminal

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

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

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

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

Tver Regional Court (Tver Region) - Criminal

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

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

Saratov Regional Court (Saratov region) - Criminal

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

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

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

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

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

Kostroma Regional Court ( Kostroma region) - Criminal

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

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

Krasnodar Regional Court (Krasnodar Territory) - Criminal

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

Illegal business

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

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

2. The objective side of this crime is expressed in illegal entrepreneurship, i.e. in independent activities carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons not registered as subjects of such activity or in violation of established rules. The act can be expressed in the following two forms: carrying out business activities without registration; carrying out business activities without a special permit (license) in cases where such a license is required.

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

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

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

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

That's all today more people begins to engage in some kind of business, large or small. Before starting your own production or providing services, you must register with the tax service as a legal entity or individual entrepreneur.

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

About the law

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

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

Violations

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

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

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

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

— fine up to 300 thousand rubles;

— compulsory work up to 480 hours;

- arrest for up to 6 months.

Part 2

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

— fine up to 500 thousand rubles;

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

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

Amendments

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

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

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

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

Food

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

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

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

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

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

1. Large size:

— fine up to 400 thousand rubles;

- forced work activity up to 3 years;

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

2. Extra large size:

— fine up to 700 thousand rubles;

— forced labor for up to 5 years;

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

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

Special products

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

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

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

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

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

Gambling business

Every person strives to earn money. Someone goes to work, and someone studies illegal activities with the prospect of receiving huge profits.

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

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

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

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

Sanctions

The punishment under 172.1 is not much, but more:

— fine up to 500 thousand rubles;

— compulsory labor up to 240 hours;

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

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

Punishment for resilient groups and officials

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

— fine up to 1 million rubles;

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

In the presence of specially qualifying use official position or a very large amount), punishment is provided in the form of a fine of up to 1.5 million rubles, as well as serving a term in prison for up to 6 years with a fine of up to 1 million rubles.

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

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

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

Registration

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

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

Compound

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

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

Investigation methodology

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

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

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

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

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

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

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

Features of crimes

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

However, if a region has adopted a regulation, illegal Federation or not within the competence of these bodies, but a businessman, relying on this act, received a license, he bears neither criminal nor administrative liability.

Often, together with the qualification of the crime, which is described in Article 171 of the Criminal Code of the Russian Federation, arbitrage practice denotes several more forms of illegal acts, such as (Article 174), use of someone else’s trademark (Article 180) and the like.

Difficulties in qualification

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

— definition of the subject;

— differentiation of adjacent trains;

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

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

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

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

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

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

Related compounds

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

Determination of the culprit

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

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

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

The court's decision

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

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

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

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

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

What is entrepreneurial activity

But first, about what it is entrepreneurial activity? How does it differ from employment? And why is illegal business prosecuted by law?

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

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

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

Administrative sanctions

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

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

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

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

Tax penalties

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

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

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

Criminal liability

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

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

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

Illegal business activity (punishment for an individual)

Why register a business

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

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

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

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

New form of business activity

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

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

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

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

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

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

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

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

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

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

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

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

1. Carrying out business activities without registration or without a license in cases where such a license is required, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale, except for the cases provided for in Article 171.3 of this Code, -

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

2. The same act:

a) committed by an organized group;

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

c) has become invalid, -

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, or by imprisonment for a term of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months or without it.

Note. Lost power.

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

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

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

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

2. The objective side of the crime is illegal entrepreneurship, i.e. in engaging in proactive independent activities, carried out at one’s own risk and aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services, unauthorized, not on legal grounds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. the federal law dated May 4, 2011 N 99-FZ “On licensing of certain types of activities” contains a list of types of activities subject to licensing, specifies which of them are licensed at the federal level, which by the executive authorities of the constituent entities of the federation, and also lists the types of activities, licensing which is carried out in accordance with other laws and regulations.

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

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

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

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

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

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