Entrepreneurial activity- this 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 duly registered in this capacity.
Entrepreneurial activity can be carried out by citizens registered as individual entrepreneurs (IP).
State registration of IP - an act of the authorized federal executive body (MNS RF), carried out by entering into the Unified State Register individual entrepreneurs information on the acquisition by an individual of the status of an individual entrepreneur or on the termination of entrepreneurial activity, as well as other information about the individual entrepreneur. State registration is carried out by the registering body (Ministry of Taxation of the Russian Federation) at the place of residence of a citizen on the basis of his application and the documents listed below, and is carried out in the manner and within the time limits in force for legal entities. The registering authority, within a period of not more than 5 working days from the date of state registration, also submits to state non-budgetary funds (PF RF, FSS RF, MHIF RF) the information contained in the Register for registration of an individual entrepreneur as an insurer in each of these funds.
Information about the place of residence is provided by the registration authority only upon request submitted by a person who has presented an identity document (an individual entrepreneur has the right to request from this authority information about persons who have received information about his place of residence).
legal entity recognized as an organization that:
- has a separate property (in ownership, economic management, operational management);
- is liable with this property for its obligations;
- may acquire property and personal non-property rights on its own behalf, bear obligations;
- can be a plaintiff and a defendant in court, arbitration, arbitration courts. A legal entity must have an independent balance sheet or estimate. Forms of legal entities: commercial organizations and non-profit organizations.
Commercial organizations pursue profit as the main goal of their activities. Must have a brand name.
Non-profit organizations do not have the main purpose of their activities to make a profit and do not distribute the profits received among the participants (founders). They can carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created.
Business partnerships: general partnerships and limited partnerships. Business companies: joint-stock companies (open and closed type), limited liability companies, additional liability companies. There are also production cooperatives (artels), state and municipal unitary enterprises.
3. Organizational legal forms conducting business activities.
3.1. General provisions
Economic entities include legal entities, as well as individuals engaged in entrepreneurial activities without forming a legal entity.
All legal entities, in accordance with Article 50 of the Civil Code of the Russian Federation, are divided into two types: commercial and non-profit organizations.
Commercial organizations- organizations pursuing profit as the main goal of their activities and distributing the profits among the participants. Commercial organizations can be created in various organizational and legal forms, namely: business partnerships, business companies, production cooperatives, state and municipal unitary enterprises.
Non-Profit Organizations- organizations that do not have profit making as the goal of their activities and do not distribute the profits received among the participants. Non-profit organizations may be created in the form of consumer cooperatives, public or religious organizations (associations), charitable and other foundations, as well as in other forms provided by law. Non-profit organizations can carry out entrepreneurial activities only insofar as it serves the achievement of the goals for which they were created, and corresponding to these goals.
It is allowed to create associations of commercial and (or) non-commercial organizations in the form of associations and unions.
Individual entrepreneurs and peasant (farm) enterprises are individuals engaged in entrepreneurial activities without forming a legal entity.
3.2. Individual entrepreneurs
In accordance with Article 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment state registration as an individual entrepreneur (IP).
founding documents and authorized capital IP is not required.
An individual entrepreneur is liable for his obligations with all his property, with the exception of property, which, in accordance with Article 24 of the Civil Code of the Russian Federation, cannot be levied by law.
An individual entrepreneur has the right to hire employees, their number is not limited by law. The activities of an individual entrepreneur are regulated by the Civil Code of the Russian Federation, there are no special laws. For an individual entrepreneur, the rules governing the activities of commercial organizations should be applied to its activities.
A citizen conducting his business as an individual entrepreneur may change (enlarge) the organizational form of his activity, or adverse circumstances(for example, the threat of bankruptcy) decide to terminate their business.
The activity of the IP is terminated:
By the tribunal's decision;
voluntarily when providing an individual entrepreneur with an application for termination of business activities to the registration authority;
in case of death individual;
in case of loss by a foreign citizen or stateless person of the right to further stay on the territory of the Russian Federation.
3.3. Legal persons.
3.3.1. Business partnerships.
In the Civil Code of the Russian Federation, two types of partnerships are fixed - full and limited (partnership in faith). (Civil Code Russian Federation. Part I. Chapter 4, § 2).
A general partnership is a commercial organization whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with all their property. A person (legal or natural) can be a participant in only one full partnership. A general partner is not entitled, without the consent of the other partners, to make transactions in his own name in his own interests or in the interests of third parties that are similar to those that constitute the subject matter of the partnership. In case of joint conduct of partnership affairs by its participants, the consent of all participants in the partnership is required for the completion of each transaction. A power of attorney is issued for one of the partners to complete the transaction. The participants in the partnership are jointly and severally liable with their property for the obligations of the partnership, that is, the creditor can present a claim both to the entire partnership and to each of the partners separately. At the same time, if the property of one of them is insufficient, the responsibility is transferred to any other comrade.
It differs from a full limited partnership in that, in addition to general partners, there are also contributors (limited partners) who are liable for the obligations of the partnership only within the limits of their contribution. They are not liable for the obligations of the partnership, and, in turn, do not have the right to participate in the management and conduct of the affairs of the partnership.
A partnership (both full and limited) is created and operates on the basis of a constituent agreement signed by all its participants. Special requirements for the foundation agreement of a full partnership are established by paragraph 2 of Art. 70 and paragraph 2 of Art. 83 of the Civil Code of the Russian Federation. They consist in the need to indicate the size and composition of the share capital; the size and procedure for changing the shares of participants; size, composition, terms of making contributions; responsibility of participants for not making contributions. Limited partnerships, in addition, must indicate the total amount of contributions of limited partners.
Thus, the partnership is a commercial organization based on exclusive trust and acting solely at its own peril and risk.
This form of legal entity is used quite rarely, since the founders of the partnership - general partners - are liable for the debts of the enterprise not only with the property invested in it, but also with all their other property, which, of course, is unprofitable for them. As experience shows, in Russia and abroad, this organizational and legal form is used, as a rule, when creating family businesses.
3.3.2. Economic companies.
Business companies include: limited liability companies (LLC), additional liability companies (ALC) and joint-stock companies (JSC), which, in turn, are divided into open (OJSC) and closed (CJSC). (Civil Code of the Russian Federation Part I. Chapter 4, § 2, Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”, Federal Law of December 26, 1995 No. 208-FZ “On joint-stock companies»).
A limited liability company (LLC) is a company established by one or more persons, the authorized capital of which is divided into shares of certain founding documents sizes; LLC participants are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions. The size of the authorized capital of an LLC must be at least 100 times the minimum wage (hereinafter referred to as the minimum wage) - 10,000 thousand rubles. An LLC cannot have another economic company consisting of one person as the sole participant. The number of participants in an LLC should not exceed 50. If the number of participants exceeds 50, then within a year the company must be transformed into an open joint-stock company or a production cooperative.
An additional liability company (ALC) differs from an LLC in that its participants, in addition to the cost of their contribution to the authorized capital, bear additional liability for obligations with their property in the same amount for all, a multiple of the value of their contributions, determined by the constituent documents of the company. The ALC form is extremely rare in Russia, as it is considered less beneficial for participants due to the fact that it imposes on the latter additional liability for the company's debts at the expense of their own property.
Limited liability companies and additional liability companies are created and operate on the basis of a constituent agreement signed by its founders and a charter approved by them. Special requirements for the constituent documents of LLC and ALC are determined by clause 2 of Art. 89 of the Civil Code of the Russian Federation, as well as Art. 12 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”. The constituent documents of LLC and ALC must indicate the size of the authorized capital and the share of each of the participants; the amount, term, composition and procedure for making deposits; responsibility of participants for not making contributions; the composition, competence of the governing bodies and the procedure for making decisions by them, including on issues decisions on which are taken unanimously or by a qualified majority; conditions and procedure for the distribution of profits; the procedure for withdrawing from the membership of the company; rights and obligations of participants; information on the procedure for storing documents of the company and providing information to participants in the company and other persons.
If a company is created by one person, then its only constituent document is the charter.
A joint stock company (JSC) is a company whose authorized capital is divided into a certain number of shares; participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares.
A joint-stock company whose members can alienate their shares without the consent of other shareholders is called an open joint-stock company (OJSC). The minimum amount of the authorized capital of an OJSC is not less than a thousand times the minimum wage (100,000 rubles). Such a company has the right to conduct an open subscription for shares issued by it and their free sale on the terms determined by law and other legal acts. JSC is obliged to annually publish for general information the annual report, balance sheet, profit and loss account. The number of founders of an open joint stock company is not limited.
A joint stock company whose shares are distributed only among its founders or other predetermined circle of persons is called a closed joint stock company (CJSC). The minimum authorized capital of a CJSC is at least one hundred times the minimum wage (10,000 rubles). Such a company is not entitled to conduct an open subscription for shares issued by it, or otherwise offer them for purchase to an unlimited number of persons. The number of shareholders of a CJSC should not exceed 50. Otherwise, the status of joint-stock companies is similar to the status of LLC.
The founding document of a joint-stock company is its charter, approved by the founders. In addition, the founders conclude between themselves an agreement on the establishment of a joint-stock company (but the agreement is not a constituent document). Special requirements for the charter of a joint-stock company are determined by paragraph 3 of Art. 98 of the Civil Code of the Russian Federation and Art. 11 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies". The charter of the joint-stock company must indicate, in addition to the information listed in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, type of company (open or closed), conditions on the categories of shares issued by the company, their par value and number, on the size of the authorized capital, on the rights of shareholders, on the composition and competence of management bodies and the procedure for making decisions by them, including on issues requiring unanimity or a qualified majority vote.
Limited liability companies and closed joint stock companies are the most popular organizational and legal forms, as they significantly minimize the risk of possible losses that may be incurred by LLC participants or CJSC shareholders in connection with the activities of such enterprises.
3.3.3. Production cooperatives (artels)
A production cooperative (artel) is a voluntary association of citizens on the basis of membership for a joint production or other economic activity(production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of services), based on their personal labor and other participation and the pooling of property share contributions by its members (participants). Members of a production cooperative (PC) bear additional responsibility for its obligations in the amount and in the manner prescribed by the Federal Law and the charter of the cooperative. The number of members of the cooperative must not be less than five. The property owned by the cooperative is divided into shares of its members in accordance with the charter. (Civil Code of the Russian Federation. Part I. Chapter 4, § 3, Federal Law of 08.05.1996 No. 41-FZ “On Production Cooperatives”, Federal Law of 08.12.1995 No. 193-FZ “On Agricultural Cooperation” ).
The founding document of a production cooperative is its charter, approved by the general meeting of its members. Special requirements for the charter of a production cooperative are established by paragraph 2 of Art. 108 of the Civil Code of the Russian Federation, as well as paragraph 2 of Art. 5 of the Federal Law of 08.05.1996 No. 41-FZ “On Production Cooperatives” and Art. 11 of the Federal Law of 08.12.1995 No. 193-FZ "On Agricultural Cooperation". The charter of the cooperative should reflect the conditions on the share contributions of the members of the cooperative, on the composition and procedure for making them; the responsibility for their non-introduction is determined; the nature and procedure for the labor participation of members in the activities of the cooperative and their liability for violation of the obligation for personal labor participation; the procedure for the distribution of profits and losses; the amount and condition of additional liability of members of the cooperative for its debts; the composition and competence of the governing bodies and the procedure for their decision-making, including on issues requiring unanimity or a qualified majority of votes; the procedure for paying the value of a share to a person who has terminated membership in a cooperative; the procedure for exiting the cooperative; procedure for admission of new members; justification and procedure for exclusion from the cooperative; the procedure for the formation of property of the cooperative, reorganization and liquidation of the cooperative.
Artel is a traditional form of business in Russia in agricultural activities. The fundamental difference between production cooperatives and business companies and partnerships is the mandatory personal labor participation of its members in the activities of the cooperative, while in a business company and partnership, only the participation of founders in authorized capital(financial participation) of the enterprise.
3.4. Determining the location of the legal entity and the type of initial property
The location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney.
The Civil Code of the Russian Federation provides for a special type of initial property for each legal form. For partnerships - share capital (Articles 66, 70, 73, 74, 76, 78 -80, 82, 85, 86); for companies - authorized capital (Articles 90, 99 - 101); for cooperatives - a mutual fund (Article 109).
The authorized capital of an LLC and a joint-stock company consists of the nominal value of the shares (shares) of its participants (shareholders). The size of the authorized capital of the company must be at least one hundred times the minimum wage (for JSC - at least one thousand times the minimum wage) established by the Federal Law on the date of submission of documents for state registration of the company. Usually the founders of the enterprise choose minimum size authorized capital, which, firstly, reduces the amount of their costs for contributions to the authorized capital; secondly, it simplifies the assessment of non-property contributions (an assessment by the participants of the company is enough). The size of the authorized capital and the nominal value of its shares are determined in rubles. The authorized capital determines the minimum amount of property that guarantees the interests of creditors.
A contribution to the authorized capital of a company may be money, securities, other things, property or other rights having a monetary value. The monetary value of non-monetary contributions to the authorized capital of the company, made by its participants and third parties accepted into the company, is approved by a unanimous decision of the general meeting of participants (shareholders) of the company. Based on the norms of the current federal legislation, the assessment of non-monetary contributions by the founders is carried out by specifying it in the decision to establish an enterprise. However, for example, the difference lies in the responsibility of the participants for the obligations of the enterprise. Since full comrades in full and limited partnerships bear the risk of loss to their property in in full, the legislation does not impose special requirements on the share capital. Even its minimum size has not been determined, which is justified, since the share capital is not the only property at the expense of which debts on the obligations of the partnership will be repaid.
Each founder of the company must fully contribute to the authorized capital (pay for shares) of the company within the period specified founding agreement and which cannot exceed one year from the date of state registration of the company. It is not allowed to release the founder of the company from the obligation to make a contribution to the authorized capital (payment for shares) of the company, including by offsetting his claims against the company.
At the time of state registration of the company, its authorized capital must be paid by the founders at least half.
3.5. Criteria for recognizing enterprises and entrepreneurs as small businesses
Small business entities are understood as commercial organizations, in the authorized capital of which the share of participation of state, public and religious organizations (associations), charitable and other funds does not exceed 25 percent, the share owned by one or more legal entities that are not small business entities does not exceed 25 percent and in which the average number of employees for the reporting period does not exceed the following threshold levels (small enterprises):
in industry - 100 people;
in construction - 100 people;
in transport - 100 people;
in agriculture- 60 people;
in the scientific and technical field - 60 people;
in wholesale trade- 50 people;
in retail and consumer services population - 30 people;
in other industries and in the implementation of other activities - 50 people.
Small business entities are also understood as individuals engaged in individual entrepreneurial activities without forming a legal entity.
3.6. positive and negative sides organizational and legal forms.
3.6.1. General provisions
The most common types of organizational and legal forms of business are limited liability companies (LLC), closed joint stock companies (CJSC), open joint stock companies (OJSC) and individual entrepreneurs (IP). Each of these forms has both positive and negative sides.
When choosing the organizational and legal form of doing business, as a rule, they proceed from the following basic principles:
1. Method of distribution of income among the owners of capital.
2. The degree of responsibility that the founders will bear for the debts of their enterprise.
3. The form of exercising control over the business.
4. The speed of transfer of ownership when changing the owners of the company.
5. The ability to attract additional financial resources for business development.
6. System of taxation.
3.6.2. Individual entrepreneur
Positive sides
1. Simplified procedure for registration and termination of activities.
2. A simplified form of accounting and reporting, a smaller list of taxes.
3. Lack of accounting.
4. Payment of 13% personal income tax on income.
Negative sides
1. Liability for debts with your personal property.
2. It is difficult to attract financial resources for development.
3. Difficult to gift, inherit and sell a business.
4. There is no possibility of distribution of responsibility for obligations arising from entrepreneurial activity
5. Losses incurred in the course of doing business, the entrepreneur must compensate from his property.
3.6.3. Limited Liability Company
Positive sides
1. Responsibility for the business is limited to the amount of the deposit.
2. You can leave society at any time
3. Simple procedure registration
4. The form allows you to attract financial resources.
Negative sides
1. When a participant leaves the company, a financial crisis may arise in connection with the payment to the participant of his share in the property of the company.
2. Complicated procedure for the sale and purchase of shares in the authorized capital of an LLC
3. Relative complexity of liquidation procedures
3.6.4. Closed Joint Stock Company
Positive sides
1. Liability is limited to the amount of the deposit.
2. Simple purchase and sale procedure.
3. High confidentiality of business ownership.
Negative sides
1. The maximum number of CJSC members is 50 individuals and legal entities.
2. State registration of the issue of shares and the report on the issue.
3. Most high level penalties.
3.6.5. Public corporation
Positive sides
1. Liability is limited to the amount of the deposit.
2. The procedure for buying and selling shares is simple.
3. Possibility of getting serious Money
Negative sides
1. Mandatory publication of annual financial results
2. Mandatory annual full audit of the company
3. State registration of share issue and issue report
Organizational and legal forms
The organizational and legal form of entrepreneurial activity is a set of property and organizational differences, methods of forming the property base, features of the interaction of owners, founders, participants, their responsibility to each other and counterparties:
1) an individual entrepreneur registered without forming a legal entity;
2) partnerships: general partnership, limited partnership;
3) business companies: limited liability companies, additional liability companies, joint-stock companies;
4) production cooperatives;
5) state or municipal unitary enterprises.
1) Article 23 of the Civil Code of the Russian Federation: a citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration.
Rights of an individual entrepreneur: may register his trademark or service mark; may operate under a trade name; the right to use hired labor; recognition by the state and the creation of favorable conditions for its activities (non-intervention, legal protection.
Responsibilities: reporting; taxation; qualification requirements; bears full property responsibility - is responsible for its obligations with all the property belonging to it.
Advantages: no significant start-up capital required; state registration takes place in the simplest version.
2) Partnership– an association of individuals or legal entities for joint economic activities.
2.1. Full partnership: participants are not only liable for debts with their property, but are also jointly and severally liable for each other: “one for all and all for one”.
2.2. Limited partnership (from French commandite): general partners who manage the company and are unlimitedly liable with their own property for the obligations of the company, + investors (limited partners) who do not participate in the management of the company and do not bear full responsibility for the failures of the company; in case of bankruptcy, the partnership loses only the amount of money that was once contributed to the authorized (reserve) capital of the partnership.
Disadvantages of a partnership: the founder must first register as an individual entrepreneur; requires maximum trust between partners; one has to answer not only for oneself, but also for the “comrade”.
However, the partnership form is more trustworthy than other forms of business, both among clients and creditors.
3) Economic company- a commercial organization with an authorized (share) capital divided into shares in accordance with the contributions of its founders, participants. A business company does not imply the mandatory participation of founders (participants) in the work of the company. Members of a business partnership are not liable for the debts of the company and bear the risk of losses only within the limits of the contributed authorized capital.
3.1. Additional liability company - a business company established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the founding documents; the participants in such a company bear subsidiary liability for its obligations to their property in a multiple of the value of their contributions, determined by the founding documents of the company.
Subsidiary liability (from Latin subsidiarus - reserve, auxiliary) - additional liability imposed on members, for example, of a general partnership, who are jointly and severally liable, in conditions where the main defendant is unable to pay the debt.
3.2. Limited Liability Company (LLC): both citizens and legal entities can be founders (minimum number of participants - 1, maximum - 50); the authorized capital consists of the value of the shares of participants and must be at least 100 times the minimum wage; the capital is divided into shares among the participants of the LLC in accordance with the constituent documents; the contribution to the authorized capital may be securities, money, material values; the participants of the company are not liable for its obligations and bear the risk of losses only to the extent of the value of their contributions.
3.3. A joint-stock company is a business organization, co-owners of which can be an unlimited number of owners of funds. At the same time, each of them has the right to a part of the property and income of the joint-stock company, and some of them also to participate in its management.
The most important rights of shareholders: 1) they are liable for the obligations of the JSC only within the limits of the amounts that they once spent on the purchase of shares, and nothing more can be demanded from them even if the company is ruined; 2) each shareholder is free to sell his shares.
A joint-stock company can be open (JSC), then you can conduct an open subscription for issued shares, freely sell shares. In a closed joint-stock company (CJSC), shares, as a rule, are distributed only among participants; subscription for issued shares and their free sale is not carried out.
A shareholder can withdraw from the company by selling his shares. Shareholders bear the risk of loss only to the extent of the value of their shares.
4) Cooperative(from lat. cooperatio - cooperation) - an enterprise, an organization created by voluntary association of persons on a share basis to carry out entrepreneurial activities. Cooperatives are legal entities and operate on the basis of self-financing and self-government.
Labor activity in the PC is built on the basis of the personal labor participation of its members.
Share - a monetary contribution or a share in the total capital of a firm, company, society, cooperative, attributable to a given individual or legal entity contributing money - a shareholder. The income and dividends received by the shareholder depend on the size of the share.
5) State and municipal unitary enterprises- These are commercial organizations that are not endowed with the right of ownership of the property assigned to them. The property of a unitary enterprise is indivisible (unitary). The immovable property of a unitary enterprise cannot be sold, leased, etc. as it is state or municipal property.
Section 1. BUSINESS ACTIVITIES. ORGANIZATIONAL AND LEGAL FORMS OF BUSINESS ACTIVITIES
Entrepreneurial activity is an independent activity carried out at one's own risk, aimed at the systematic extraction of profit, and carried out by persons registered in the prescribed manner.
The main features of entrepreneurial activity. Entrepreneurial activity:
· aimed at systematic profit. Entrepreneurial activity is systematic and often serves as a source of livelihood for those who carry it out.
· associated with risk. This sign includes a variety of aspects. Entrepreneurial risk includes, first of all, the risk of losses due to a breach by partners of their obligations, the risk of changing the conditions for doing business due to circumstances beyond the control of the entrepreneur (for example, changes in laws), the risk of not receiving the expected profit, the risk of loss or damage to property. In addition, the principle “ignorance of the law does not exempt from liability” applies to entrepreneurs, which means that there is no obligation for the authorities to inform entrepreneurs about new or changed rules, to remind them of the need to fulfill any obligations (for example, to file a tax return on time). Thus, the entrepreneur knowing the laws but violating them bears the risk of liability.
· carried out by persons registered in the prescribed manner. Entrepreneurial activity is legal only if it is carried out by persons (individual entrepreneurs, organizations) who have passed the state registration procedure. In other cases, entrepreneurial activity is illegal. Administrative and criminal liability is provided for illegal entrepreneurial activity.
Attention!The term "entrepreneurial activity" is synonymous with the concept of "business".
Entrepreneurial activity, entrepreneurship, entrepreneur - the concepts used in regulatory legal acts.
The concept of "business" is used less frequently in legislation (for example, "gambling business"), and is used mainly in colloquial speech.
In what organizational and legal form can entrepreneurial activity be carried out?
There are 2 main forms in which business activities can be carried out:
Individual entrepreneurial activity;
Creation of a legal entity.
What is a legal entity? Is an individual entrepreneur a legal entity?
Entity is the organization that owns legal basis any property. A legal entity acts in economic circulation on its own behalf.
Thus, an individual entrepreneur is not a legal entity.
Entrepreneurial activity can be carried out by any legal entity or are there any restrictions?
The organization may be commercial or non-commercial.
commercial organization - an organization that pursues profit as the main goal of its activities. That is, commercial organizations are created solely for the implementation of entrepreneurial activities. The profit received by a commercial organization is distributed among the participants of the organization.
Organizational and legal forms of commercial organizations:
Partnerships (general or limited partnerships);
Production cooperative;
Fund;
Non-commercial partnership;
Autonomous non-profit organization;
The minimum authorized capital is 10,000 rubles
The authorized capital is divided into shares, state registration is not required
Partnerships
Participants (with the exception of partners in faith) bear subsidiary liability with their property for the debts of the partnership
Management of activities is carried out by common consent of all general partners
Participants, as a rule, bear the risk of losses within the limits of the contribution made to the authorized capital
Management of current activities is carried out by the head, when decisions are made by the general meeting, some issues can be resolved by a simple majority of votes
Production cooperative
Number of members - at least 5
At least 70% of the members of the cooperative must be on the staff of the cooperative
Number of participants - from 1 to 50
There is no such requirement
Unitary enterprises
Created only on the initiative government agencies or local authorities
Transferred property is not owned
There is no such restriction
The transferred property belongs to the right of ownership
Attention!In the future, in this manual, as an example of a commercial organization, we will only talk about LLC.
What is a sole proprietorship?
This is an activity aimed at making a profit, carried out by a citizen registered as an individual entrepreneur.
Such activities are carried out on behalf of a citizen who is a "sole leader", i.e. only he has the right to sign documents and only he is responsible.
Attention!PE, ICHP, PBOYuL, IP - abbreviations denoting the status of a citizen-entrepreneur. All of them are synonyms. On the different stages development of Russian legislation, different terms were used. Currently, the designation "individual entrepreneur" (IP) is correct.
At what age can a citizen carry out individual entrepreneurial activity?
By general rule a citizen can become an individual entrepreneur after acquiring full civil capacity, that is, from the age of 18.
However, there are exceptions to this rule. An individual entrepreneur under the age of 18 can be in the following cases:
Marriage at the age of 16-18 (a person who has entered into marriage acquires full legal capacity from the moment the marriage is registered);
Emancipation (emancipation is a procedure for recognizing a minor at the age of 16 as fully capable. It is carried out by the guardianship and guardianship authorities with the written consent of the parents or by the court).
Attention!The rules on individual entrepreneurial activity apply to peasant (farm) enterprises established without the formation of a legal entity.
Differences between IP and LLC
1. Scope of responsibility |
|
The liability of the IP is unlimited. If there is a debt (to the budget, off-budget funds, counterparties) IP risks all its property. | Responsibility of the participant by the amount of his contribution to the authorized capital. |
2. Opening costs |
|
|
OK. 250 rub. – notary fees | 2000 rub. - government duty 10 000 rub. – minimum authorized capital OK. 250 rub. - notary fees additional expenses: 200 rub. for each additional copy of constituent documents |
3. Other mandatory requirements |
|
Individual entrepreneurs are prohibited from engaging in activities such as, for example, trading alcoholic drinks(except for beer), auditing, security services. | carry out any kind of activity. |
The rest of the IP and equal participants in the economic turnover. Each of them has the right to have a seal, a current account, conclude contracts, hire employees, obtain licenses and certificates, participate in tenders for the supply for state and municipal needs, to receive support from the budget, etc.
Attention!The norms of civil legislation governing the activities of commercial organizations are applied to individual entrepreneurial activity.
As for the tax burden, then when applying special tax regimes (ESKhN, USNO, UTII), for individual entrepreneurs and the same tax rates.
When applying the general taxation regime, the rates for all taxes are also the same. However, it must be borne in mind that in this case, the payer of corporate income tax, and the individual entrepreneur - the payer of personal income tax.
Who are the subjects of small and medium-sized businesses?
Small and medium-sized businesses are business entities (legal entities and individual entrepreneurs) classified in accordance with the conditions established by the Federal Law of 01.01.2001. "On the development of small and medium-sized businesses in the Russian Federation", to small enterprises, including micro-enterprises, and medium-sized enterprises.
The presence of the status of a small or medium-sized business allows you to use state and (or) municipal support.
Attention!Commercial organizations (except for state and municipal unitary enterprises), consumer cooperatives, individual entrepreneurs and peasant (farm) enterprises can be recognized as small and medium-sized businesses.
Criteria for inclusion in small and medium-sized businesses:
1. For legal entities - the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations (associations), charitable and other foundations, in the authorized (share) capital (share fund) does not exceed 25%, the share of participation of one or more legal entities that are not subjects of small and medium-sized businesses does not exceed 25%.
2. Average population employees for the previous calendar year does not exceed the following limit values:
101-250 people for medium enterprises,
Up to 100 people for small enterprises, as part of small micro-enterprises - up to 15 people.
3. Proceeds from the sale of goods, works, services excluding VAT or the book value of assets for the previous calendar year does not exceed the following limit values:
1000 million rubles for medium enterprises,
400 million rubles for small businesses,
60 million rubles for microenterprises.
conclusions
1. Entrepreneurial activity may be carried out by citizens registered in accordance with the established procedure and organizations.
2. The organization may be commercial or non-commercial.
3. A non-profit organization may carry out entrepreneurial activity only to the extent that it is necessary to achieve the goals of its main activity. A commercial organization carries out entrepreneurial activities without restrictions.
4. Individual entrepreneurs and LLCs are full participants in civil circulation, however, each of these forms has its own characteristics.
5. There is a concept of small and medium-sized businesses. To be classified as a small and medium-sized business, an enterprise must comply with the established criteria.
Section 2. STATE REGISTRATION OF BUSINESS ENTITIES
The main legal acts regulating the state registration procedure:
Federal Law of 01.01.2001 No. "On State Registration of Legal Entities and Individual Entrepreneurs";
Decree of the Government of the Russian Federation No. 000 dated 01.01.2001 No. "On approval of forms and requirements for the execution of documents used for state registration of legal entities, as well as individuals as individual entrepreneurs";
Order of the Federal Tax Service No. SAE-3-09 / [email protected] from 01.01.2001 "On methodological clarifications on filling out the forms of documents used in the state registration of a legal entity and an individual entrepreneur."
General rules
1. Bodies carrying out state registration of business entities (with the exception of non-profit organizations) are territorial tax authorities.
2. When registering, apply to the tax authority at the location of the non-residential premises (legal address of the LLC). When registering an individual entrepreneur - at the place of residence of an individual who wants to acquire the status of an individual entrepreneur.
3. Registration is carried out within 5 working days (the day of submission of documents, weekends, holidays are not taken into account).
4. A state fee is charged for state registration.
5. All documents containing more than 1 sheet must be numbered, bound and signed by the applicant.
State registration of LLC
For state registration, the body must submit the following documents:
1. STATEMENT, filled out in accordance with the form Р11001 (1 copy). This application form is approved by the Government of the Russian Federation. Submission of an application filled in in any form or in another form will result in a denial of state registration.
The following information is required to complete the application:
The address of the location of the permanent executive body of the LLC (manager), indicating the postal code and contact phone number;
Passport details of the founders;
Place of residence of the founders, indicating the index and contact phone number;
Taxpayer identification numbers (TIN) of the founders;
Passport data, place of residence, TIN of the head of the LLC (if the head is not at the same time the founder of the LLC);
Where can I find the application form?
Application forms are available for free sale. You can use the Internet to search, as well as legal reference systems. It must be remembered that the application form is sometimes changed, so you need to be sure that the sites present the form with the latest changes, and legal reference systems are up to date.
Who is the applicant for state registration?
One of the founders may be the applicant for state registration of creation. If there are several founders, the question of which of them will be the applicant is decided by mutual agreement, usually this is reflected in the minutes of the general meeting of founders of the LLC. It is not at all necessary that the applicant be exactly the founder who has the most big share in the authorized capital of LLC.
Attention!A director who is not a founder cannot be an applicant when establishing an LLC.
What to do if the founders are not assigned a TIN?
In this case, the relevant columns of the application remain blank. TIN is indicated if available.
How to fill out an application if there are several founders, but there is only one list of founders?
Need to be removed right amount copies from this sheet. Each of the founders should be dedicated separate sheet statements.
Who is the person entitled to act without a power of attorney on behalf of a legal entity?
Such powers, in accordance with the charter of the LLC, are vested in the head of the LLC.
Who determines the name of the permanent executive body (manager) of the LLC? Can you come up with a name yourself?
The name of the body is determined by the founders. This is reflected in the charter in the decision of the founders to establish an LLC. You can come up with a name yourself, it is not prohibited by law. The most commonly used names are "director", general director", "president".
Why is it necessary to specify the types of activities?
In accordance with the Civil Code of the Russian Federation, commercial organizations and individual entrepreneurs have the right to engage in all types of activities not prohibited by law. However, during registration, nevertheless, it is necessary to indicate what exactly the subject of entrepreneurial activity will be engaged in. Such an obligation was introduced for the purposes of statistical accounting, as well as to facilitate the work of other bodies. For example, tax inspector, looking at the types of activities, will be able to determine which taxation system a particular enterprise applies, in accordance with the main type of activity, the rates of contributions to the Social Insurance Fund for compulsory insurance against industrial accidents and occupational diseases are determined.
How to list activities?
The types of activities are indicated in accordance with the codes of the All-Russian Classifier of Types of Economic Activities (OKVED).
OKVED is divided into parts:
Name of parts | Example |
Section D. Manufacturing industries |
|
Subsection (optional) | Subsection D.A. Production food products, including drinks, and tobacco |
15. Manufacture of food products, including beverages |
|
Subclass | 15.5. Dairy production |
15.51. Milk processing and cheese production |
|
Subgroup | 15.51.1. Production of whole milk products |
15.51.12. Production of sour cream and liquid cream |
Thus, it is obvious that OKVED is built on the principle "the fewer numbers in the code, the more the general wording of the type of activity corresponds to it." Therefore, if you indicate in the application a code consisting of 3 digits (for example, 15.1), then it is understood that this gives the right to engage in all other types of activities that are assigned codes containing the same numbers (15.11, 15.11.1, 15.12, etc.). d.).
Legal forms of exercising the right to conduct entrepreneurial activities are commercial organizations chosen by a citizen, non-profit organizations engaged in entrepreneurial activities, contractual associations (contractual forms) within which entrepreneurial activities are carried out.
Entrepreneurial activity can also be carried out by him without creating a legal entity. As noted above, a citizen acquires the status of an individual entrepreneur (legal personality in the field of entrepreneurship) from the moment of his state registration.
A citizen as a legal entity (individual entrepreneur) acts in the economic turnover on his own behalf, including the surname and given name, as well as patronymic, unless otherwise follows from the law or national customs. If he changed his name in accordance with the established procedure, these changes are entered in the Unified State Register of Individual Entrepreneurs. The change of name does not entail the termination or change of his rights and obligations acquired under the former name.
An individual entrepreneur is obliged to notify his debtors and creditors of a change in his name and bears the risk of consequences caused by the lack of information from these persons about the change in the name of a citizen (Article 19 of the Civil Code).
A citizen as a legal entity does not have the right to act under a company name.
A citizen is registered as an individual entrepreneur at the place of his permanent residence.
A special separation of property for entrepreneurial activities of a citizen is not required by law, but as a result, he is liable for his obligations with all his property (with the exception of property according to the list provided for in Article 446 of the Code of Civil Procedure, which is not levied), as well as bears the risk of the consequences of influence on the property sphere of the entrepreneur, financial and economic results of the activities of various random circumstances - * (source No. 156).
Legal entities belong to one or another organizational and legal form of entrepreneurship. The organizational and legal form of entrepreneurial activity is understood as a set of organizational and property differences, manifested in the features of the organization of their activities, the nature of the relationship between owners, founders (participants) and created by them legal entities, features of the formation of the property base, features of responsibility - * (source No. 157).
These typical differences (features) characterize such groups of commercial organizations - legal entities as business partnerships (full and limited); business companies (with limited liability, with additional liability, joint-stock companies - closed and open); production cooperatives; unitary enterprises (state and municipal). Commercial organizations are created only in these organizational and legal forms - * (source No. 158).
Organizational features are expressed in the internal structure of the organization's affairs.
In partnerships, internal and external management of affairs is carried out by the comrades themselves; management bodies in these organizations are not created.
In business companies, the supreme governing body is general meeting participants, shareholders. In a joint-stock company with more than 50 shareholders, a board of directors is created. In other companies, such a body is created if it is provided for by the constituent documents.
The Board of Directors, within its competence, exercises general management of the company's activities, control over the executive bodies of the company. At the same time, persons who are not shareholders may be elected to the board of directors.
The executive body of the company may be collegiate and (or) sole.
In state and municipal enterprises, the head of the enterprise is appointed by the competent state or municipal body, with him this body concludes labor contract, the head (director) of the enterprise acts on the basis of unity of command.
property signs. All commercial organizations, with the exception of unitary ones, act as owners, on the basis of private property. Unitary enterprises operate on the basis of state or municipal property. State and municipal enterprises act as carriers of property rights derived from the right of ownership - economic management, and state-owned enterprises - the rights of operational management. State, municipality retain ownership of the property of these enterprises.
In relation to business companies, partnerships, production cooperatives, participants, having made contributions to the authorized (reserve) capital of business partnerships and companies, to the property of a production cooperative, acquire liability rights.
Organizational and legal forms also differ in the construction of responsibility for obligations.
Yes, in full partnership the participants are jointly and severally liable for the debts of the partnership with their property. In limited liability companies, joint-stock companies, participants, shareholders bear the risk of losses within the limits of their investments in the authorized capital, in shares. The Company itself bears full property liability for its obligations.
Entrepreneurial activity can be carried out within the framework of a contractual association that is not a legal entity.
An example of such an agreement uniting commercial organizations, individual entrepreneurs is a simple partnership agreement (about joint activities). AT simple partnership two or more persons combine their deposits and act together to receive and subsequently distribute profits (Article 1041 of the Civil Code of the Russian Federation).
On the basis of agreements that unite their participants, various organizations that are not legal entities operate: peasant (farm) enterprises, financial and industrial groups, concerns, consortiums, etc.
A peasant (farm) economy is created by citizens specifically for the implementation of entrepreneurial activities in the field of agricultural production. On behalf of the economy, its head acts.
In financial-industrial groups (hereinafter referred to as FIGs), the interests of the entire FIG are externally represented by a specially created central company authorized to conduct the affairs of FIGs by the charter, the agreement on its creation. For the obligations of the central company of the FIG, which arose as a result of participation in the activities of the FIG, its participants are jointly and severally liable (Article 14 of the Federal Law of December 30, 1995 N 190-FZ "On financial and industrial groups" - * (source No. 159)) .
If a FIG is created as part of the main and subsidiaries, the conduct of business in the interests of the entire FIG is carried out by the main company.
Organizations included in the group retain their independence, but build their strategy taking into account the overall strategy for the development of FIGs. Participation in FIGs reduces the level of entrepreneurial risk, expands the opportunities for diversifying production, participation in investment projects, and within the framework of FIGs, conditions are created to increase the competitiveness of goods and services. It can be argued that associations of this kind are a legal form that contributes to the systematic organization of the effective implementation of entrepreneurial activities in the interests of the entire FIG and each of its participants - * (source No. 160).
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