home » Instructions » Bringing entrepreneurs to criminal liability. When does an individual entrepreneur risk his property? Economic crimes IP

Bringing entrepreneurs to criminal liability. When does an individual entrepreneur risk his property? Economic crimes IP

Starting your own business and becoming an individual entrepreneur is a tempting prospect for many. But before you decide to take such a step, you should very carefully weigh the pros and cons. Still, the responsibility of individual entrepreneurs for debts can be tangible. Often you have to pay with your personal property.

How a sole trader is liable for debts

Issues related to the obligations of individual entrepreneurs are considered by various regulatory legal acts. But the main part of them falls on the Civil Code of the Russian Federation. Yes, Art. 24 regulates that an entrepreneur is obliged to be liable for debts not only with property belonging to him as a legal entity, but also as an individual, that is, with his personal property.

There are a number of items that are exceptions to this rule:

The only housing of the debtor.
Personal items (shoes, clothes, etc.).
Household items, including food.

Labor law

If the IP has employees, then its activities must be subject to the requirements of labor legislation. The Labor Code of the Russian Federation establishes that any debts to employees are subject to compensation if, through the fault of the entrepreneur, they did not receive their earnings due to them.

If an individual entrepreneur caused damage to the property of his worker, he is also obliged to compensate him. Art. 235 of the Labor Code of the Russian Federation determines what is taken as a basis market price damaged property. In this case, the employee is not required to apply to the court. It will be enough for him to simply provide evidence that the damage was actually done.

For debts individual entrepreneur can pay with his property

Administrative responsibility

If the entrepreneur allowed in his activities administrative offenses, then the Code of Administrative Offenses of the Russian Federation applies to it. Such offenses may include the following:

Delay in reporting to the tax authorities.
Non-payment of taxes (in the presence of large amounts, criminal liability occurs).
Illegal sale of goods in non-compliance with all rules requiring the provision of complete information about the products sold.
Non-use in trading activities cash register machine.

These are the most common offences. There are many more such acts. The Code of Administrative Offenses of the Russian Federation prescribes the imposition of different amounts of fines for their commission. Simply liquidating individual entrepreneurs so as not to pay them will not work. In this case, even a closed one will be obliged to reimburse organizations and the state for all amounts.

When the property is removed

The Constitutional Court has established rules that clearly regulate the cases in which an entrepreneur can lose his apartment. So, if an individual entrepreneur owns a dwelling, which is his only housing, then it is forbidden by law to withdraw it.

Regulatory legal acts allow you to take away an apartment or house only in two cases:

If the premises is a bank pledge.
In situations where it is in a mortgage, and therefore cannot be determined as the property of the debtor.

How are debts paid when an IP is closed

If it so happened that an individual entrepreneur as entity ceased to exist due to bankruptcy, this does not mean that he will not be liable for all the obligations that he assumed earlier. An explanation on this issue was made in 2007 by the Constitutional Court of the Russian Federation. An individual entrepreneur is liable for debts with his property to the tax authorities and various funds (for example, to a pension fund).

Bankruptcy does not free you from debt

In such situations, debts can only be collected by court order. The statute of limitations in this case is three years. If at the court session the decision is not made in favor of the entrepreneur, then there are two ways to proceed:

The former individual entrepreneur agrees to voluntarily pay off his debts. Then only the cost of the state duty will be added to the indicated amount.
In case of refusal, it is supposed to collect the debt under the writ of execution from the individual entrepreneur. It is carried out through the service of bailiffs. The term for enforcement proceedings is set at 5 years.

Will be written off first cash that lie in the bank accounts of a citizen. If this is not enough, the bailiff proceeds to an inventory of the existing property, having previously divided the property of the spouses (if the individual entrepreneur is officially married). The part belonging directly to the debtor will be put up for auction, and the proceeds from them will go to the accounts of creditors.

If the entrepreneur does not have property that can be sold, then the debt will be collected gradually from his future income from any activity. Until it is repaid, such a person may not be allowed to travel abroad.

Thus, the termination of the existence of an individual entrepreneur as a legal entity and its transition to the status of an individual will not entail the suspension of debt obligations.

For the vast majority of readers of the site, this article will not be useful. It will focus on the responsibility for credit obligations of a citizen who is an individual entrepreneur. Before we disassemble the flight, let's start with the basics. Definition entrepreneurial activity given in the SECOND article of the Civil Code of the Russian Federation, which in itself says a lot, since it is in the initial articles of each Law that key and significant concepts, as well as their definitions, are found. Consider also that Civil Code was adopted almost immediately, after a geopolitical entity called Russia appeared on the map of the World. "Entrepreneurial activity 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 as such in statutory all right." Almost everything that is written in one way or another is of key importance, but I would like to highlight one thing, in the context of credit relationships: "at your own risk" . Banal statistics show that 90% percent, if not more, of business ventures cannot last more than a year. We will not go into details why, but from this it should become clear that having "burned out" Ip-shnik will most likely remain in debt, since most undertakings start with a loan (s). An individual entrepreneur for an ordinary citizen, who did not go into the details of creating legal entities, seems to be the most accessible way Start your own bissnes. And the prices for registering an IP by a third-party organization are lower than for registering others. In fact, as a possible option, it is easier for a person to open an LLC in terms of financial responsibility. Not so long ago in Russia, mandatory payments to Pension Fund and sots-nanan, which led to the closure of many Ip-shnikov. They are often referred to as "small". It must be understood that these are usually those who invest in business and their own work: laundry, bakery, delivery, manipulator services, tow truck, etc. For the government, they are really "small" and very unimportant. In fact, they are very useful for those who live in the neighborhood, because it is always nice to buy fresh bread, and to know who made it and from what, rather than waiting for it to be brought cold. However, let's leave the "tears" and move on to the moment of registration of a citizen as an individual entrepreneur. Without going into details, I will give the text of Article 23 of the Civil Code of the Russian Federation, which says that: "a citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment state registration as a sole trader." Since it is difficult, long and expensive for an ordinary professional confectioner or mechanic to register a legal entity, in his opinion, the choice falls in most cases on individual entrepreneurs, while forgetting one important point. Since a citizen does not form a separate legal entity, then the responsibility of an individual entrepreneur is equal to the responsibility of an ordinary citizen, and it is enshrined in article 24 of the Civil Code of the Russian Federation "A citizen is liable for his obligations with all his property, with the exception of property, which, in accordance with the law, cannot be levied." An individual entrepreneur is liable for his obligations as an individual entrepreneur, as well as as a citizen, WITH ALL YOUR PROPERTY!!! That is why it makes no difference to whom the loan was issued, to an individual entrepreneur or to a citizen. Consider, according to the Law "On Enforcement Proceedings", the option when, according to the court, the debtor is an individual entrepreneur. Based on part 2 of article 94 "Procedure for foreclosure on the property of the debtor-organization", all those measures that the bailiff must apply against the debtor of the organization will be applied to the IP. They are listed in part 1 of the article: "1. In the event that the debtor-organization does not have sufficient funds to satisfy the requirements contained in the executive document, foreclosure is levied on other property owned by the specified organization on the basis of the right of ownership, the right of economic management or the right operational management(with the exception of property, for which, in accordance with the legislation Russian Federation may not be levied), regardless of where and in whose actual use it is located, in the following order: 1) first of all - to movable property not directly involved in the production of goods, performance of work or provision of services, including securities(excluding securities constituting investment reserves investment fund), office design items, finished products(commodities), precious metals and gems, products from them, as well as scrap of such products; 2) secondarily - to property rights not directly used in the production of goods, performance of work or provision of services; 3) thirdly - to immovable property not directly involved in the production of goods, performance of work or provision of services; 4) in the fourth place - to property rights directly used in the production of goods, performance of work or provision of services and property involved in the production of goods: objects real estate industrial purpose, raw materials, machine tools, equipment and other fixed assets, including securities that make up the investment reserves of the investment fund. It should be noted that the legislator took care of legal entities, no matter how "ridiculous" it may sound. The sequence is drawn up in such a way that at first valuables or material rights to something that is not involved in the production itself are seized. In other words, the individual entrepreneur has a chance to continue to work and earn money during the execution of executive actions, and this is important. The law "does not block oxygen" to the IP-shnik immediately. If we are talking about the fact that you, as an individual entrepreneur, took a loan, then the procedure if you owe the bank will be something like this: your current account or accounts will be seized for a certain amount. If this amount is on your accounts, it will be automatically debited, if not, then everything will be withdrawn to the penny, since there will be no restrictions as a citizen with his 50% in order to leave 50% for living. If the debtor is an individual entrepreneur, then it is easier for the bailiff-executor to follow the path of property and funds of the individual entrepreneur itself, rather than a citizen, however, if you do not have enough property funds as an individual entrepreneur, it will begin regular work to recover the remaining part from you as a citizen. Most likely, the transition to this stage will for the most part mean the beginning of thoughts about the bankruptcy (closing) of the IP. I do not want to exaggerate, but payments for the purchase of goods or payment for services will not work. Any replenishment of the account, which is often used by individual entrepreneurs, will also not help, because the bank does not have the right to pass through your account the funds received “past the cash desk” of the creditor bank. Any debit transactions are prohibited. Surely the only thing you can pay is taxes and mandatory pensions, etc. payments. And then, it’s not a fact that you don’t have to explain something to the bailiffs and interact with the elder so that these payments are missed. Article 81 of the Law "On Enforcement Proceedings", which is called "Seizure of funds held in a bank or other credit organization". So that citizens and individual entrepreneurs do not have any illusions, I will cite only paragraph 3 of the article: "The bank or other credit institution shall immediately execute the decision to seize the debtor's funds and inform the bailiff of the details of the debtor's accounts and the amount of the debtor's funds seized on each account." All your data will be kindly provided by the bank itself, in addition, the bailiff, on the basis of part 9 of article 69 of the Law "On Enforcement Proceedings", has the right to request: "The tax authorities, banks and other credit organizations information may be requested: 1) on the name and location of banks and other credit institutions in which the accounts of the debtor are opened; 2) on the numbers of settlement accounts, the amount and movement of funds in rubles and foreign currency; 3) other valuables of the debtor kept in banks and other credit institutions. All these data must be provided to him in accordance with part 10 of the same article within 7 days after receiving the request. Now Russia is actively implementing all sorts of registries and databases, so interactions of this kind will happen faster and faster. The tax office will immediately provide the whole picture of your property and "tell" about your individual entrepreneur, and about participation in an LLC, CJSC, OJSC. If you took out a loan as a citizen, but at the same time also registered as an individual entrepreneur, then some nuances are possible here. All of them are connected only with the literacy and diligence of the bailiff. If you notice, then in all major cities of Russia, the number of FSSP employees ( federal service bailiffs) is only increasing. However, the number of debtors significantly overtakes them. Depending on the workload and quickness of the bailiff, as well as on your situation in terms of money, property and income, he may not immediately find out that you are a registered individual entrepreneur. Over time, of course, even if you officially do not have any property and there is nothing to take from you, requests to the tax office will periodically come. You understand that it will take a little time to understand that you have an IP. After that, they will take care of your accounts, property, etc. Of course, as already mentioned, you can rely on employment and lack of time for you from the bailiff, on his superficial attitude to duties, maybe he will have a lot of cases in production and will not be up to you, but all this is from the category of "how lucky." It is better to initially prepare for the most severe and tough options.

An individual who conducts entrepreneurial activity bears property liability for his obligations as an individual entrepreneur for work within the framework of entrepreneurial activity. At the same time, administrative responsibility is also possible - for example, as an employer, as well as on other grounds, depending on the specifics of the activity.

Entrepreneurial activity of a citizen

If a citizen has decided to do business, then in accordance with paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, you can not establish a legal entity, but conduct entrepreneurial activities, but for this you need to register as an individual entrepreneur.

At the same time, even if a citizen conducts activities without registration, the court may recognize him as an entrepreneur and apply the relevant rules (clause 3, article 23 of the Civil Code of the Russian Federation).

It should be borne in mind that entrepreneurial activity is aimed at systematically making a profit and is carried out independently at your own risk (Article 2 of the Civil Code of the Russian Federation). That is, the presence of losses does not indicate that the citizen is not an entrepreneur.

And when registering, it must be taken into account that the property liability of an individual entrepreneur can occur for any obligation.

An individual entrepreneur is obliged to comply with all requirements imposed on him by law, for example:

proper registration of business (licenses, permits);
submission of reports;
payment of taxes and other payments;
fulfillment of environmental requirements, fire safety;
compliance with the requirements of labor legislation;
many others depending on the type of activity.

And also to fulfill contractual obligations in relations with contractors. At the same time, it should be taken into account that the termination of activity as an entrepreneur does not remove responsibility for the entrepreneurial activity that the citizen conducted.

The property of an individual is unified, therefore, an individual entrepreneur is liable with all his property, including those that have nothing to do with the business. In paragraph 55 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated November 17, 2015 No. 50, it is indicated that Art. 24 of the Civil Code of the Russian Federation establishes, regardless of the status of an individual entrepreneur, the property liability of an individual and does not divide his property into the property of an entrepreneur and an individual.

At the same time, an individual can have income from both entrepreneurial and other activities. For example, an individual entrepreneur who provides educational services, can sell a personal car. And in this case, the audit can cover all the activities of a citizen, and an on-site tax audit can be carried out for several taxes with a single decision (Letter of the Ministry of Finance dated 01.24.2017 N 03-02-08 / 3210).

IP liability

Besides government agencies, the individual entrepreneur has obligations in relation to counterparties, employees. In case of formation of debt from the entrepreneur, funds are collected from all accounts, at the expense of property. And in case of termination of activity as an individual entrepreneur, funds can be recovered from wages. That is, the debt from entrepreneurial activity is the debt of an individual. And if in relation to the organization debts are paid at the expense of the property of the organization, and the founder and director are liable only in rare cases under certain circumstances, then the entrepreneur, by virtue of the law, is responsible independently. At the same time, the termination of activities does not affect the debts of the IP and the possibility of presenting claims against it. Any counterparty may bring a business action claim against to an individual- former IP.