Are the requirements of the tax inspectorate to register an individual entrepreneur legitimate when renting a vehicle to legal entities?

Rental Vehicle individual legal entities. The rights and obligations of the participants in the transaction.

Question: An individual rents 2 cars without a crew to different legal entities who perform the functions of a tax agent (withhold personal income tax). Tax office demanded from physical persons to register IP, is it legal?

Answer: Russian legislation allows any owner to rent out their property (clause 2, article 209 of the Civil Code of the Russian Federation). According to the Civil Code of the Russian Federation, one of the signs of entrepreneurial activity is its focus on the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services. However, it is not further specified in which cases it is possible to talk about the systematic receipt of profit by a citizen.

- production or acquisition by a citizen of property for the purpose of subsequent profit from its use or sale;
- Citizen accounting business transactions related to the implementation of transactions by him;
- the interconnectedness of all transactions made by a citizen during a certain period of time;
— the presence of stable relationships with sellers, buyers or other counterparties.

To resolve the issue of the presence or absence of signs of entrepreneurial activity in the actions of a citizen, the tax authorities first of all analyze the purposes for which he acquired this or that property, as well as the systematic nature of his transactions.

Thus, in order to resolve the issue of the presence or absence of signs of entrepreneurial activity, tax authorities first of all analyze the purposes for which a citizen acquired this or that property, as well as the systematic nature of his transactions, both for the acquisition and sale of goods, works or services. (See Help sidebar.) The Federal Tax Service of Russia additionally draws attention to the following (letter No. KE-3-3/142@ dated January 25, 2011):

“The qualification of income related to entrepreneurial activity depends on a combination of factors that make up the essence of a particular type of entrepreneurial activity:<…>the grounds in connection with which the right of ownership to the property being sold was obtained, the purposes of the ongoing purchase and sale of the said property, as well as the availability of evidence of the systematic implementation of these operations.

In addition to the listed signs of entrepreneurial activity, in practice, inspectors pay attention to several more important factors.

Under the systematic conduct of business, the tax authorities understand the completion by a citizen of at least two transactions during the year

According to the Civil Code of the Russian Federation, one of the signs of entrepreneurial activity is its focus on the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services (paragraph 3, clause 1, article 2 of the Civil Code of the Russian Federation). However, it is not further specified in which cases it is possible to talk about the systematic receipt of profit by a citizen. In practice, how do inspectors determine whether an activity generates systematic income?

Usually they proceed from the definition of the term "systematic" given in paragraph 3 of Article 120 of the Tax Code of the Russian Federation. Paragraph 3 of this paragraph refers to which violations of the rules for accounting for income and expenses and objects of taxation are gross. In this context, the term "systematic" refers to the commission of a violation two or more times during a calendar year. Similarly, Moscow tax authorities assess the systematic receipt by a citizen of profit from the commission of certain onerous transactions (letters of the Federal Tax Service of Russia for the city of Moscow dated March 14, 2005 No. 08/21721). In particular, they indicate:

“In order to apply penalties to an individual in accordance with Part 1 of Article 14.1 of the Code of Administrative Offenses of the Russian Federation for conducting business activities without state registration as individual entrepreneur it is necessary to establish that this person systematically carried out activities aimed at making a profit, that is, at least twice.”

Thus, one can talk about the systematic conduct of entrepreneurial activities by an individual, even if during the calendar year he made only two paid transactions aimed at making a profit. But, of course, such a conclusion can be made only if there are other signs indicating that the citizen is carrying out such activities.

Does a citizen renting property need to become an entrepreneur?

Anyone who owns real estate can easily rent it out. If the tenant is a company or an entrepreneur, they, as tax agents, withhold personal income tax from the income of a citizen and transfer it to the budget. If the property is leased to an individual, at the end of the year, the owner of the property must submit a declaration in the form of 3-NDFL and pay tax to the budget. But in some cases, the tax authorities say that by constantly renting out real estate, a citizen is forced to become an entrepreneur. This means that one payment of personal income tax from income is no longer enough. Is it so? We asked a practicing lawyer to comment on the situation.

Receive rental income: is it entrepreneurship or not?

— Russian legislation allows any owner to rent out their property (clause 2, article 209 of the Civil Code of the Russian Federation). The main thing is to understand when the actions of the owner can be recognized as entrepreneurial activity, and when not.

If you are an entrepreneur

The article will tell you if you calculate taxes correctly if you rent out real estate.

— Can I see the criteria for entrepreneurial activity somewhere?

- There is no clear list. V Civil Code RF only says that entrepreneurial is independent activity, which is carried out at your own risk and is aimed at systematic profit. And the tax authorities indicated under what circumstances a citizen should become an entrepreneur. For example, if individual bought property specifically to make a profit, or owns several properties that he rents out. There are other signs of entrepreneurship. Their list is presented in the table below.

-These signs are quite common. After all, it is difficult to prove for what purpose a person bought an apartment: to rent it out for the sake of income, or it is an investment in the future of his child - so that he has a place to live ... How then to find out in which case when renting out property you need to become an entrepreneur?

—There is no single answer to this question. Everything is individual. Therefore, it is advisable to focus on judicial practice. So, if a citizen has acquired a dwelling for personal needs or inherited it, but he does not need to use it, he can lease such property. And this is not entrepreneurship. That is, a citizen does not need to register as an entrepreneur in this case (clause 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 No. 23 and the resolution of the Supreme Court of the Republic of Tatarstan dated April 27, 2015 No. 4a-378m). It will not apply to commercial activities and renting by the day and by the hour of such a dwelling. This is stated in the decision of the Supreme Court of the Russian Federation dated January 10, 2012 No. 51-AD11-7.

Signs of entrepreneurial activity are listed in the letter of the Federal Tax Service of Russia dated February 25, 2013 No. ED-2-3 / 125@.

Mandatory registration

In addition, in accordance with sub. 7 p. 1 art. 31 of the Tax Code of the Russian Federation, the tax authorities have the right to assess additional amounts of taxes payable by calculation based on the information they have about the taxpayer, as well as data on other similar taxpayers. This happens if the taxpayer refuses to allow officials the tax authority to inspect production, storage, retail and other premises and territories used by it to generate income or related to the maintenance of objects of taxation, does not submit documents to the tax authority for tax calculation for more than 2 months, does not keep records of income and expenses, and also objects of taxation or keeps records with violations, resulting in the inability to calculate taxes.

Administrative responsibility. If the subject conducts entrepreneurial activities without state registration as an individual entrepreneur, this forms the composition administrative offense, under Part. 1 Article. 14.1 of the Code of Administrative Offenses of the Russian Federation.

Criminal liability. Criminal legal consequences occur in the case of carrying out entrepreneurial activities without state registration or without a license (if one is required), if this act caused large damage to citizens, organizations or the state or is associated with the extraction of income on a large scale (part 1 of article 171 of the Criminal Code of the Russian Federation ) — 2.25 million rubles.

So, carrying out activities that meet the criteria provided for in paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, an individual must register as an individual entrepreneur. At the same time, as the Constitutional Court of the Russian Federation pointed out in its resolution of December 27, 2012 No. 34-P 2, the absence of state registration does not in itself mean that the activity of a citizen cannot be qualified as entrepreneurial, if in essence it is actually such.

Is renting out premises considered a business?

Answered by Alexander Sorokin,

Deputy Head of Department operational control Federal Tax Service of Russia

“CCP should be used only in cases where the seller provides the buyer, including its employees, with a deferral or installment plan for paying for their goods, works, services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a return of such a loan, or itself receives and repays a loan, do not use the cash desk. When exactly you need to punch a check, see the recommendations.

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The concept and signs of entrepreneurial activity

The legal definition of entrepreneurial activity is given in Art. 2 of the Civil Code of the Russian Federation.

Entrepreneurial is an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.

Analysis of this definition allows us to identify the following features of entrepreneurial activity.

Entrepreneurial activity characterized by independence.

It is conditionally possible to single out the property and organizational independence of the entrepreneur. Property independence is determined by the fact that the entrepreneur has a separate property of his own as the economic base of activity. The scope of property independence depends on the legal title on the basis of which this property belongs to the subject. The greatest autonomy of the owner of the property. Enterprises operating on the right of economic management also have significant property independence, but already limited by law and an agreement with the owner. And finally, ownership of property on the right of operational management gives the least scope for the manifestation of entrepreneurial initiative.

Organizational independence is the ability to make independent decisions in the process of entrepreneurial activity, starting from making a decision to engage in such an activity, choosing its type, organizational and legal form of implementation, the circle of founders, etc. The independence of the entrepreneur is also manifested at the stage of implementation of the results of entrepreneurial activity. Thus, independence, being a strong-willed, subjective sign of the activity of an entrepreneur, manifests itself at all its stages. The entrepreneur acts by his own power and in his own interest, by his actions realizing the rights granted to him by the legislation. Therefore, the legal relationship that develops when an entrepreneur carries out his activities is qualified as absolute in the science of business law.

However, entrepreneurial autonomy is not unlimited. Being a social activity, it must obey the social norms that operate in society. Among these norms, the leading role is played by legal norms, establishing the rules that an entrepreneur must follow in his activities when entering the market.

It should be noted that the sign of independence distinguishes entrepreneurial activity from labor. Having concluded labor contract, the employee must obey the rules of the internal labor regulations, fulfill the duties assigned to him, comply with labor discipline. Showing initiative in implementation labor activity it is also possible, but it is obvious that its volume is not comparable with the independence of the entrepreneur.

2. Entrepreneurship involves risk. The risky nature of entrepreneurship fundamentally distinguishes it from economic activity the period of the administrative-planned economy, which allowed the existence of deliberately unprofitable enterprises, which, in case of poor economic results, could turn to the state for support. In this regard, it is quite understandable that such a purely market institution as the institution of insolvency (bankruptcy) is reborn in our country only with the transition to the market.

Entrepreneurial risk is a powerful incentive to successful work; loss reduction can be achieved by concluding a business risk insurance contract, i.e. the risk of losses from entrepreneurial activities due to violation of their obligations by counterparties or changes in the conditions of this activity due to circumstances beyond the control of the entrepreneur, including the risk of not receiving expected income.

3. Entrepreneurial activity is aimed at systematic profit. Making a profit, being the main goal of an entrepreneur, gives his activity a commercial character, which is not lost even if the result is not a profit, but a loss. At the same time, if making a profit as a goal is not set initially, the activity cannot be called entrepreneurial, it is not of a commercial nature.

It is impossible not to pay attention to such a qualifying sign of entrepreneurial activity as a systematic approach to making profit.

Unfortunately, clear quantitative criteria for systematicity have not yet been developed by law. It is proposed to fill the legislative gap by including additional qualifying features in the definition of entrepreneurial activity, such as the share of profit from this activity in the total income of a person, the "materiality" of profit, receiving it a certain number of times for a specific reporting period and etc.

It seems that arithmetic categories cannot be applied in this case. It is important that the entrepreneur sets himself the goal of not making a one-time profit, but extracting it as a trade, on an ongoing basis.

4. In accordance with the legal definition of entrepreneurial activity, profit is derived by entities from the use of property, the sale of goods, the performance of work or the provision of services.

This feature seems to be poorly worded. The fact is that entrepreneurial activity is multifaceted and in market economy its directions cannot be represented by a closed list. Apparently, it did not make sense to enumerate the possible areas of entrepreneurial activity in the law, since they are determined primarily by the market.

What is entrepreneurial activity wage labor?

In accordance with Art. 2 Civil Code of the Russian Federation Entrepreneurial is an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.

In turn hired labor is the performance by an employee on the instructions of the employer for a fee of a labor function (i.e. work in a certain specialty, qualification or position) subject to the internal labor regulations applicable to the employer, while ensuring the latter proper working conditions in accordance with the norms labor law (Article 15 of the Labor Code of the Russian Federation).

Compare the signs of entrepreneurial activity with signs of another type economic relations- relations of hired labor.

So the necessary signs of entrepreneurial activity are:

1. independence;

3. risky nature;

4. the fact of state registration.

Let's take a closer look at these features.

1. Independence, which in turn includes the following elements:

a) organizational independence

Unlike an employee, who is obliged to obey the established internal labor regulations (observe working hours, comply with labor standards, etc.), an entrepreneur is independent in his business. He himself decides what and how to produce, from whom to purchase raw materials and materials, to whom and at what prices to sell products. No one has the right to dictate and impose his will on him. But at the same time, no one is obliged to assist the entrepreneur in his activities: to provide him with work, to create working conditions.

b) initiative

Initiative is the other side of independence. Both of these signs imply each other. Being independent in his economic activity from anyone else, the entrepreneur himself determines its direction and means of implementation.

c) economic independence

Organizational independence and initiative are possible only under the condition of economic independence, which gives the entrepreneur the possession of separate property, which he uses in the implementation of entrepreneurial activities. The property is not always the property of the entrepreneur. Ownership of property may be on the right of economic management or the right of operational management. An entrepreneur can also own property on a leasehold basis. In any case, he has the opportunity to independently use such property.

The hired worker, however, does not possess the means of production, and therefore, in order to satisfy his material needs, he is hired to work for the entrepreneur. Consequently, hired labor, unlike entrepreneurial activity, is dependent labor, subject to the will of the owner or other owner of the means of production. In this sense employee, although he receives for his work wages, does not work for himself, but for the employer.

2. Focus on systematic profit- this is perhaps the most significant sign of entrepreneurial activity. Both from the point of view of ordinary consciousness and from the point of view of science, entrepreneurial activity is, first of all, an activity whose purpose is to make a profit. Other signs of entrepreneurial activity are, in a certain sense, secondary, derived from this sign.

At the same time, it should be borne in mind that from the point of view of the law, in order to qualify an activity as an entrepreneurial one, it is not necessary that as a result of its implementation, a profit was actually received. The only thing that matters is the goal, the focus on getting it. Whether there will actually be a profit or not is important for resolving other issues, in particular taxation issues.

On the other hand, in order to be considered entrepreneurial, the activity must be aimed not just at obtaining, but at the systematic receipt of profit, i.e. carried out more or less regularly. Therefore, transactions aimed at a one-time profit cannot be considered as entrepreneurial activity.

It would seem that the sign of a focus on making a profit does not significantly distinguish entrepreneurial activity from hired labor. An employee, like an entrepreneur, works in order to earn income, pay for his work, which may exceed the income of an average entrepreneur. However, the earnings of an employee cannot be considered as profit. Profit is the difference between income and the cost of obtaining it, or, in other words, surplus value. The employee does not incur any costs, does not produce any of his own material costs. He simply “sells” his labor at the prevailing market price. For this reason, he can have neither profit nor loss.

3. Risky nature entrepreneurial activity lies in the fact that it does not always give the expected results. Due to a variety of reasons, both subjective (mistakes, miscalculations of the entrepreneur) and objective (changes in market conditions, default, natural disaster), an entrepreneur can not only not receive the planned profit, but also go bankrupt, crash. It was the risky nature of entrepreneurial activity that led to the emergence of the institution of insolvency (bankruptcy) in civil law.

The activity of the hired worker is built on other principles. Subject to conscientious performance of his duties, he has the right to claim wages, even if the products he produced turned out to be unclaimed and were not sold.

4. State registration of persons engaged in entrepreneurial activities as a sign of entrepreneurial activity is not always included in the main ones. Indeed, from the point of view of the economic content of entrepreneurial activity, the presence or absence of state registration is not significant. But from the point of view of law, in the absence of registration, illegal entrepreneurship will take place, for which administrative, and under certain conditions, criminal liability is provided.

The legal definition of entrepreneurial activity is given in Art. 2 of the Civil Code of the Russian Federation.

Entrepreneurial is an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.
Analysis of this definition allows us to identify the following features of entrepreneurial activity.
1. Entrepreneurial activity is characterized independence.
It is conditionally possible to single out the property and organizational independence of the entrepreneur. Property independence is determined by the fact that the entrepreneur has a separate property of his own as the economic base of activity. The volume of property independence depends on the legal title on the basis of which this property belongs to the subject. The greatest autonomy of the owner of the property. Enterprises operating on the right of economic management also have significant property independence, but already limited by law and an agreement with the owner. And finally, ownership of property on the right of operational management gives the least scope for the manifestation of entrepreneurial initiative.
Organizational independence is the ability to make independent decisions in the process of entrepreneurial activity, starting from making a decision to engage in such an activity, choosing its type, organizational and legal form of implementation, the circle of founders, etc. The independence of the entrepreneur is also manifested at the stage of implementation of the results of entrepreneurial activity. Thus, independence, being a strong-willed, subjective sign of the activity of an entrepreneur, manifests itself at all its stages. The entrepreneur acts by his own power and in his own interest, by his actions realizing the rights granted to him by the legislation. Therefore, the legal relationship that develops when an entrepreneur carries out his activities is qualified in the science of business law as absolute - * (source No. 22).
However, entrepreneurial autonomy is not unlimited. Being a social activity, it must obey the social norms that operate in society. Among these norms, legal norms play a leading role, establishing the rules that an entrepreneur should follow in his activities when entering the market.
It is important to say that the sign of independence distinguishes entrepreneurial activity from labor. Having concluded an employment contract, the employee must comply with the internal labor regulations, fulfill the duties assigned to him, and observe labor discipline. The manifestation of initiative in the implementation of labor activity is also possible, but it is obvious that its volume is not comparable with the independence of the entrepreneur.
2. Entrepreneurship involves risk. The risky nature of entrepreneurship fundamentally distinguishes it from the economic activity of the period of the administrative-planned economy, which allowed the existence of obviously unprofitable enterprises, which, in case of poor economic results, could turn to the state for support. In this regard, it is quite understandable that such a purely market institution as the institution of insolvency (bankruptcy) is reborn in our country only with the transition to the market.
Entrepreneurial risk is a powerful incentive for successful work; loss reduction can be achieved by concluding a business risk insurance contract, i.e. the risk of losses from entrepreneurial activities due to violation of their obligations by counterparties or changes in the conditions of this activity due to circumstances beyond the control of the entrepreneur, including the risk of not receiving expected income.
It should be noted that the category of risk has traditionally been the subject of research by economists. Thus, the French economist R. Catillon, who is considered the father of the term "entrepreneur", was one of the first to put forward the concept of risk as a distinctive feature of entrepreneurial activity. A. Smith in his "Research on the Nature and Causes of the Wealth of Nations" characterized the entrepreneur as the owner of capital, taking on the risk of managing. Entrepreneurial profit, according to Smith, is the owner's compensation for risk. The authors of the well-known textbook "Economics" - * (source No. 23) K. McConnell and S. Brew considered entrepreneurship as special kind activity, which is based on a number of features, including the characteristics of the entrepreneur as a person who takes risks. An entrepreneur risks not only time, labor, business reputation, but also by invested funds - their own and their partners or shareholders.
In the legal literature, the category of risk is also of great interest; attempts have been repeatedly made to formulate a definition of this concept - * (source No. 24). Not being able to present the entire palette of definitions, we present one of them, proposed by V.S. Belykh, who understands entrepreneurial risk as "the potential possibility (danger) of the occurrence or non-occurrence of an event (a set of events) that entailed adverse property consequences for the entrepreneur's activities" - * (source No. 25).
3. Entrepreneurial activity is aimed at systematic profit. Making a profit, being the main goal of an entrepreneur, gives his activity a commercial character, which is not lost even if the result is not a profit, but a loss. At the same time, if making a profit as a goal is not set initially, the activity cannot be called entrepreneurial, it is not of a commercial nature.
Researchers paid attention to making a profit as the goal of an entrepreneur's activity centuries ago. Thus, the French economist J.B. This, a contemporary of D. Ricardo, defined the entrepreneur as an economic agent that combines factors of production, moves economic resources from the area of ​​low productivity and low incomes to the area of ​​high productivity and profitability - * (source No. 26). R. Catillon identified an incentive motive for entrepreneurial activity - obtaining a higher income as a payment for bearing risk. Consonant with R. Catillon, the statement of A.I. Kaminki, who noted that profit is only an incentive for commercial activity. The purpose of commercial activity is this activity itself, activity that brings profit - * (source No. 27).
From a legal point of view, the concept of "profit" is defined in accounting and tax legislation as the final financial result of the activity of an economic entity. So, in accordance with Art. 247 of the Tax Code of the Russian Federation profit for Russian organizations income received is recognized, reduced by the amount of expenses incurred, determined in accordance with Art. 247 of the Tax Code of the Russian Federation. At the same time, economic benefit in cash or in kind is recognized as income, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined in accordance with the provisions of the Tax Code of the Russian Federation (Article 41 of the Tax Code of the Russian Federation). Reasonable and documented expenses (and in the cases provided for in Article 265 of the Tax Code of the Russian Federation, losses) incurred (incurred) by the taxpayer (Article 252 of the Tax Code of the Russian Federation) are recognized as expenses. Thus, without setting ourselves the task of a detailed consideration of the issue of the procedure for generating profits, we note that this procedure is defined quite accurately by law. Behind the reliability of the formation financial result activities of entrepreneurs are subject to state tax control. In addition, entrepreneurs can, and in some cases are required to use the services of auditors to confirm the reliability of their financial (accounting) reporting. It is safe to say that the interest in the correct formation of entrepreneurial profits is of a private-public nature.
It should be noted that the purpose of making a profit is the basis for distinguishing organizations into commercial and non-commercial in Art. 50 of the Civil Code of the Russian Federation.
It is impossible not to pay attention to such a qualifying sign of entrepreneurial activity as a systematic approach to making profit.
Unfortunately, clear quantitative criteria for systematicity have not yet been developed by law. It is proposed to fill the legislative gap by including additional qualifying features in the definition of entrepreneurial activity, such as the share of profit from this activity in the total income of a person, the "materiality" of profit, receiving it a certain number of times in a particular reporting period, etc.
It seems that arithmetic categories cannot be applied in this case. It is important that the entrepreneur sets himself the goal of not making a one-time profit, but extracting it as a trade, on an ongoing basis.
Of course, systematic profit cannot be considered as the only goal of entrepreneurial activity. At the same time, the construction proposed in the literature seems to be purely theoretical, which allows the entry into the market of an entrepreneur who does not set himself as strategic objective earning profit as a result of their activities.
4. In accordance with the legal definition of entrepreneurial activity, profit is derived by entities from the use of property, the sale of goods, the performance of work or the provision of services.
This feature seems to be poorly worded. The fact is that entrepreneurial activity is multifaceted and in a market economy its directions cannot be represented by a closed list. Why, for example, is it necessary to talk only about the right to use in relation to property? And if the subject makes a profit in the process of exercising the right to dispose of property? Apparently, it did not make sense to enumerate the possible areas of entrepreneurial activity in the law, since they are determined primarily by the market. It should be noted that in the concept of entrepreneurial activity, which was given in the Law of the RSFSR of December 25, 1990 N 445-I "On enterprises and entrepreneurial activity" - * (source No. 28), this list was absent. This approach seems to be more correct.
5. Finally, as stated in Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is carried out by persons registered in this capacity in the manner prescribed by law. A literal interpretation of the legislative norm leads to the conclusion that if the activity is carried out by unregistered persons, it is not entrepreneurial. This conclusion appears to be incorrect. Indeed, how, in such a case, to apply Art. 171 "Illegal entrepreneurship" of the Criminal Code of the Russian Federation, Art. 14.1 "Carrying out entrepreneurial activities without state registration or without a special permit (license)" of the Code of Administrative Offenses of the Russian Federation, how to recover in court the income received from such activities to the budget? The imperfection of legal technique leads to the need to use other ways of interpreting this norm: systematic, logical. Such a sign of entrepreneurial activity as its implementation by duly registered persons is a formal sign, i.e. a sign that legalizes this activity, giving it a legal status. Its absence does not lead to the loss of entrepreneurial quality, but makes it illegal. Unlike the analyzed formal feature, the previously considered features of entrepreneurial activity are essential (revealing its essence), and only their totality makes it possible to qualify a person's activity as entrepreneurial. Some researchers of the concept of entrepreneurial activity propose to interpret the obligation of state registration not only as a sign, but also as a condition for proper entrepreneurship, a requirement for the implementation of legal entrepreneurial activity. It seems that such an interpretation of the need for state legitimization of an entrepreneur is appropriate.
It is important to say that in the scientific and educational literature it is proposed to consider other signs of entrepreneurial activity that are not presented in the legislative definition. Let's pay attention to some of them.
Sign of business professionalism. As a sign of entrepreneurial activity, professionalism proposes to single out, in particular, O.M. Oleinik. Expanding the concept of professionalism of an entrepreneur, the author writes that this feature "consists of:
- the conduct of this activity by people who have certain qualifications or information necessary for making and implementing decisions ... As a confirmation of professionalism, the current legislation in some cases recognizes previously received education (for example, legal, economic, medical), and in others requires the entrepreneur to pass relevant examinations (for example, for auditors);
- carrying out entrepreneurial activities according to certain rules and methods...;
- conformity of results of activity to certain requirements...;
- controllability of activities government bodies...;
- the presence of state guarantees of activity ... "- * (source No. 29).
Without disputing the desirability of the presence of all the above components of professionalism and professionalism as such in the activities of an entrepreneur, confirming the presence of professionalism as a condition for successful, competitive activity, we note that in practice entrepreneurial activity is not always carried out professionally. However, this does not deprive the activity of qualification as entrepreneurial. This feature appears to be necessary only for some activities. For example, as licensing requirements and conditions, the presence of special knowledge, experience, education, which is confirmed necessary documents, provided for most licensed activities. For many other types of entrepreneurial activity, professionalism is not put forward as a mandatory characteristic. Therefore, it seems more accurate to consider the sign of professionalism of entrepreneurial activity not as a mandatory, but as an optional feature.
Among the optional features of entrepreneurial activity, one should also consider its innovative, innovative nature. The creator of the theory of the entrepreneur-innovator is the economist J. Schumpeter, who considered the entrepreneur as "an agent that implements more and more combinations of factors of production (by updating commercial products, searching for new markets, etc.)" - * (source No. 30) . J. Schumpeter formulated the following functions of entrepreneurial activity:
- production of a new material good, still unfamiliar to the consumer, or the former good, but with a new quality;
- the introduction of new production methods that were not used in it before;
- development of new economic markets or wide and deep use of the former ones;
- development of new sources and types of raw materials;
- Implementation of a new organization of production and marketing. It is impossible not to notice that the signs put forward by J. Schumpeter are currently reflected in the emerging legislation on innovation activities.
Among the signs of entrepreneurial activity, the RSFSR Law of December 25, 1990 N 445-I "On Enterprises and Entrepreneurial Activity" pointed to the property liability of the entrepreneur. In the modern legal definition, this feature has not been fixed. At the same time, as rightly noted in the literature, this "does not mean the absence of legal responsibility itself" - this feature is inherent in entrepreneurial activity. The grounds and procedure for bringing to responsibility of business entities are determined current legislation. Moreover, Art. 401 of the Civil Code of the Russian Federation, defining the grounds for liability for violations of obligations, provides for increased liability of the entrepreneur: "Unless otherwise provided by law or contract, a person who has not fulfilled or improperly fulfilled an obligation in the course of entrepreneurial activity shall be liable, unless he proves that proper fulfillment turned out to be impossible due to force majeure, i.e. extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, violation of obligations by the debtor's counterparties, lack of goods on the market necessary for execution, lack of the necessary Money".
Having considered the signs of entrepreneurial activity, it is possible to classify them. It seems that all signs of entrepreneurial activity can be classified:
- to those specified in the legislative definition of entrepreneurial activity (legal) and additionally offered in the literature;
- essential, characterizing the essence of entrepreneurial activity, and formal, characterizing its form;
- mandatory, the totality of which is necessary and sufficient to qualify the activity as a legitimate business, and optional, the presence of which is desirable, but not mandatory.
Besides, in scientific literature among the signs of entrepreneurial activity are generic, inherent in any economic activity(independence, risk) and specific (systematic profit) -. The promotion of generic and specific features leads us to the need to determine the relationship of entrepreneurial activity with such types social activities, as economic, economic, commercial (trading). The concept of "economic activity" seems to be the broadest. Economic activity can be defined as a reproductive activity that combines such stages as production, distribution, exchange, consumption.
Economic activity, being a type of economic activity, is defined as the procedure for its organization, management and direct implementation.
The concept of entrepreneurial activity was discussed earlier. Note that entrepreneurial activity is a kind of economic economic activity, having such a generic feature as a focus on making a profit. As V.K. Mamutov, the concept of economic activity includes entrepreneurship, but is not limited to it - * (source No. 34).
Commercial, or trading, activity is a set of actions to promote goods from manufacturers to consumers. commercial activity is a kind of economic economic entrepreneurial activity - * (source No. 35).