Constituent documents

Any individual entrepreneur acts on the basis of a certificate of state registration. Only this document allows him to carry out his activities officially. The document is issued at the place where the entrepreneur is registered with the tax office.

The advantage of this form of activity is that an individual entrepreneur is not obliged to develop various constituent documents as prescribed for legal entity. The only documents he needs to obtain the certificate are:

• passport;
• relevant statement;
• receipt of payment of state duty.

After completing registration active entrepreneur receives its own unique main state registration number individual entrepreneur– OGRNIP. An individual entrepreneur can also be identified by his individual tax number, which he must always indicate in any agreement signed by him.

Situations when the activity engaged in by an individual entrepreneur is licensed, obliges him to obtain the appropriate permit. Otherwise, he does not have the right to officially engage in work in this area. A license is issued by an authorized body in a given area of ​​economic activity and has its own validity period.

Activities under the contract

For a long time, domestic entrepreneurs preferred to work under a contract. This made it possible, while working on a simplified taxation system, to actually work as a legal entity. An individual entrepreneur drew up a civil contract or worked on the principle of partnership, without separating a legal entity. This made it possible to attract hired employees who were not his relatives. But since 2010, such steps have been declared illegal because they allow tax evasion.

Now an existing entrepreneur can draw up an agreement only as a performer or customer and act within the framework specified in this agreement. Now two different entrepreneurs cannot enter into cooperation agreements with each other. If it is necessary to use the services of other individual entrepreneurs, the entrepreneur must draw up a separate agreement with each of them for the provision of services. Similarly, it is necessary to conclude agreements with each of the clients. Each contract must contain the full details of each of the parties, and the responsibilities and guarantees for each of them are stipulated.

Based on evidence

Today the law obliges every individual entrepreneur to indicate in each contract the number of the state registration certificate. Along with these data, the date on which the certificate was issued must be indicated. True, there is no need to write in the text of the agreement the phrase “Individual entrepreneur acting on the basis of certificate No. dated...” It is more logical and correct to indicate this data at the end of the document next to the place where the signature and seal are affixed, if the entrepreneur has one.

Moreover, this formulation is considered erroneous. It is usually used in standard contracts, and similar forms of documents have not been developed for individual entrepreneurs. When drawing up such acts, he must be guided by general provisions Civil Code.

Hired director

The law allows individual entrepreneurs to enter into civil and labor contracts exclusively with relatives. And no more than three persons. These are the only restrictions that need to be taken into account by an entrepreneur who wishes to hire a director to perform management functions in his business. That is, not wanting to manage the business, the individual entrepreneur can issue a general power of attorney for one of the relatives, who will act as a director in the business. Usually, his competence is limited to the right to decide financial questions and sign when performing representative functions or managing the facility. But all responsibility for his decisions and actions lies with the individual entrepreneur. The exception is when the director commits a criminal act.

A hired director can enter into contracts that should contain approximately the following phrase: “Director point of sale No. 3 Nikiforov M.K., acting in the interests of IP Ivanov G.V. on the basis of power of attorney No. 5 dated 07/03/2012...”

Peculiarities of Peasant Farm Operations

In fact, a collective farm enterprise (KFH) is also registered without forming a legal entity. It is understood that for its work, citizens unite on the basis of an agreement to grow agricultural products. The head of such an enterprise can work alone, having the status of an individual entrepreneur. The agreement between the participants, on the basis of which the peasant farm is registered, determines the cooperation of the participants in the farm, so the conclusion of additional agreements is not required.

Please note that only relatives can be participants in such an enterprise. They distribute among themselves collective responsibility for the activities of peasant farms, while individual entrepreneurs are solely responsible. In fact, a peasant farm is an intermediate link between an individual entrepreneur and a legal entity.

When forming agreements on behalf of such a farm, the documents must indicate the phrase “Peasant farm represented by the head of Sidorov M.F., acting on the basis of the Certificate of Registration No. dated...”.

Do you need a Charter?

I would like to emphasize once again that the Charter is the prerogative of an exclusively legal entity. An individual entrepreneur has greater freedom of action and does not need to draw up a document on the basis of which he will conduct his activities. The only documents that can limit this are the relevant licenses and the Unified State Register of Legal Entities.

OGRNIP or certificate?

Since 2014, there have been some changes in laws that apply to small businesses. They affected the main activities of the individual entrepreneur and his accounting. Thus, OGRNIP and the registration certificate are equated to each other and are considered identical documents. That is, by receiving the certificate, the entrepreneur receives official confirmation that he has been assigned OGRNIP from the moment registration is completed.

That is, when receiving a certificate, an entrepreneur can be sure that his data is entered into the Unified State Register of Individual Entrepreneurs, and he can check this using OGRNIP, which is the serial number of this entry.

Individual entrepreneurship today is supported by the country's leadership. Lightweight accounting has been introduced, the entrepreneur is not tied to a legal address, can change the profile of his activity, and is more independent in running his business. Yes, and registering an individual entrepreneur today is more than simple.

newbusiness.su

On what basis does the individual entrepreneur operate in 2019?

Many, especially novice lawyers, often fall into a kind of stupor when they find an individual entrepreneur in the “head” of the agreement instead of the usual “Romashka LLC” represented by the Director, full name, acting on the basis of the Charter.” And on what basis does the IP operate? There are also options with powers of attorney, which cause no less confusion, but what about individual entrepreneurs?

Some people write “on the basis of the Charter” out of habit, others - as in the case of individuals. persons “on their own behalf”. The first is definitely wrong; individual entrepreneurs do not have a charter. The second is true, but partly, since an individual entrepreneur is not just an individual. He has the status of an individual entrepreneur. Although there is an opinion that it is enough to indicate “IP full name” in the header, without indicating the basis on which it acts.

IP status

The status of an individual entrepreneur is the right given to a citizen (or a foreigner, or a stateless person, in general, an individual) by the state to legally engage in business activities, make a profit, at his own peril and risk, and, most importantly, to pay taxes on this (in fact, the status is for this and there is).

The status of an individual entrepreneur is recorded in the Certificate issued to him upon registration in the Unified State Register of Individual Entrepreneurs (USRIP). In fact, he is given a certain number under which he is in this register.

On what basis does the IP operate?

An individual entrepreneur acts on the basis of the status given to him by the state. The basis for assigning this status will be the document on the basis of which it acts. This is a Certificate of state registration as an individual entrepreneur. But - only those issued before January 1, 2017. From this date, the Certificate is not issued, according to Order of the Federal Tax Service of Russia dated September 12, 2016 N ММВ-7-14/ Instead, a Record Sheet in the Unified State Register of Individual Entrepreneurs is issued, which is the basis for the activities of the individual entrepreneur. If it is lost, you can obtain from the territorial inspection a Notification of registration as an individual entrepreneur:

Constituent documents of an individual entrepreneur

As such, individual entrepreneurs do not have constituent documents, since only legal entities have them. There are a number of documents that are mistakenly considered constituent documents, although they can be called registration or corporate:

OGRNIP

As already mentioned, the Certificate of assignment of OGRNIP (state registration as an individual entrepreneur) has not been issued since January 1, 2017. OGRNIP can be found from the Record Sheet, or from the Unified State Register of Individual Entrepreneurs.

Technically, OGRNIP is a unique (at least it should be) 15-digit number containing the subject code, tax number, serial number and checksum.

TIN

The TIN can also be found from the Record Sheet, or from the Certificate, if the individual received the TIN before registration. This is a 13-digit number, similar in logic to OGRNIP.

Extract from the Unified State Register of Individual Entrepreneurs

At the moment, the practice is that only an extract from the Unified State Register of Individual Entrepreneurs is sufficient as a basis for confirming the activities of an individual entrepreneur. Or the Record Sheet, which is essentially the same thing.

In the same way, it is not a constituent document, but rather a legal document, like all those listed above.

Can an individual entrepreneur have a director?

Actually, maybe. But how employee, for example, warehouse director. Or the store manager. But - this is an official acting by proxy, when, as compared with the director of an LLC, he acts on the basis of the powers given to him by the charter, without a power of attorney. They have different legal natures.

Drawing up an agreement with an individual entrepreneur

Here we come to the issue of proper execution of the contract. There are several opinions, we will try to highlight them:

• Indicate “Individual Full Name, acting on the basis of state registration dated [date], OGRNIP number ________________.” Here, in our opinion, the basis for the activities of an individual entrepreneur and its difference from a simple individual are most correctly reflected.
• Indicate “Individual Full Name, acting on his own behalf.” In any case, at the end of the contract its full details will be given. Disadvantages - a number of counterparties may refuse to accept this form. But to avoid overloading the contract, this is possible.
• You can simply “IP Full Name, OGRN ____________”. The text is even less overloaded, but all the distinctive features are there, although some counterparties may again object. But they can also require a checkpoint for individual entrepreneurs.

Check the counterparty before the transaction

In the case of an individual entrepreneur, it is enough to check whether he is in status or has been deprived of his status for a long time. This can be done on the Federal Tax Service website. But this is only information whether the individual entrepreneur is operating or not at the moment. You can check whether the individual entrepreneur is currently in the process of liquidation through the above link, as well as through another Federal Tax Service service.

It is also worth checking on the website of the Arbitration Courts to see if there are any court cases against the individual entrepreneur, especially bankruptcy cases, or simply cases where he is the defendant. If systematic non-repayment of debts is normal for him, you should think about the need to work with him.

It is also worth checking various “blacklists”, of which there are many on the Internet.

The FSSP website, the database of enforcement proceedings, does not work well, but you can find something. In any case, it is better not to neglect them.

There are various systems that combine many services, such as “spark”, “contour”, “my business” and others. Many who work with a large number of counterparties use them.

bizneszakon.ru

The individual entrepreneur acts on the basis of what in the contract

Quite often, in the relationships between Russian business entities (in particular, when concluding agreements between organizations and entrepreneurs), the question arises: “If the director of a legal entity acts on the basis of the charter, then on what basis does the individual entrepreneur act?” Indeed, an entrepreneur does not need a charter; he acts on the basis of the rules Russian legislation. Then which document can be referred to as the basis for entrepreneurial activity? Let's look at this issue in this article.

On what basis does the IP operate?

Articles 23 of the Civil Code of the Russian Federation and 11 of the Tax Code of the Russian Federation state: a citizen is registered as an individual entrepreneur in the prescribed manner and after that has the right to engage in relevant commercial activities.

Accordingly, a document confirming registration as an entrepreneur is the answer to the question of what the individual entrepreneur is acting on in the contract.

Individual entrepreneur registration

In our country, every citizen has the right to conduct commercial activities. This right is enshrined in law. However, in order to turn from an ordinary individual into an individual entrepreneur, a citizen should submit an application (form N P21001 - Appendix No. 13 to the Order of the Federal Tax Service of the Russian Federation dated January 25, 2012 N MMV-7-6/) and others necessary documents to the registration authority - the Federal Tax Service of Russia (Article 22.1 of the Federal Law of 08.08.2001 N 129-FZ, hereinafter referred to as Law No. 129-FZ).

Such registration is necessary to grant the appropriate status tax accounting etc. If a citizen does not apply to the Federal Tax Service, but actually carries out commercial activities, he still will not be able to refer to the fact that this activity is not such.

Exactly territorial bodies Within three days, the tax service carries out procedures to register the appropriate status and issues a document confirming its existence.

For registration, a citizen must pay a fee in established amount and submit to the inspection a document confirming its payment along with an application for registration as an individual entrepreneur.

Information that an individual has the status of an individual entrepreneur is entered into a special register (USRIP). Any interested person who wants to check whether a citizen has the appropriate status can obtain information about this from the Unified State Register of Individual Entrepreneurs.

Registration as an individual entrepreneur is terminated upon the application of the relevant person who wishes to terminate commercial activities, or as a result of his death (Article 22.3 of Law No. 129-FZ).

Based on the results of the procedures for registering an individual entrepreneur, a person must be issued a form (hereinafter referred to as Form No. P60009) about registration in the Unified State Register of Individual Entrepreneurs.

Document on individual entrepreneur status

As noted above, when a question arises, an individual entrepreneur acts on the basis of what exactly, previously the correct answer was “he acts on the basis of a certificate in form N P61003.”

In particular, it contained information about:

• date of issue;
• issuing authority;
• date of entry in the Unified State Register of Individual Entrepreneurs;
• OGRNIP.

In 2017, the situation changed a little.

By order of the Federal Tax Service of Russia dated September 12, 2016 N ММВ-7-14/, the certificates were abolished. Since 2017, the document confirming the status of an individual entrepreneur is the Record Sheet of the Unified state register individual entrepreneurs according to form N P60009.

Form No. P60009 contains all the same information as the certificate, including:

• Full name of the entrepreneur;
• date of issue;
• name of the Federal Tax Service;
• date of entry in the Unified State Register of Individual Entrepreneurs;
• OGRNIP.

Therefore, starting from 2017, the answer to the question on the basis of which document the individual entrepreneur operates is form N P60009.

When concluding an agreement, the parties can indicate as a document the basis for operating as an individual entrepreneur a link to this form.

glavkniga.ru

Peasant farm, registered not as a legal entity, but in the manner prescribed for individual entrepreneurs

There is a peasant farm, registered not as a legal entity, but in the manner prescribed for individual entrepreneurs. The registration certificate indicates that, on the basis of the provisions of the law, a record of registration of a peasant farm, the head of which is such and such an individual, has been made in the Unified State Register of Individual Entrepreneurs, and a OGRNIP is assigned to him. In this case, the status of an individual is individual entrepreneur? If an agreement is concluded with a peasant farm, then the party in the agreement will be designated as “peasant farm represented by the head Ivanov I.I.” or “individual entrepreneur - head of peasant farm Ivanov I.I.”?

The head of a peasant farm has the status of an individual entrepreneur. The contract should indicate the name of the manager in full: “Individual entrepreneur - head of the peasant farm Ivanov I.I.”

In accordance with paragraph 5 of Article 23 of the Civil Code of the Russian Federation, the head of a peasant farm can only be a citizen who is registered as an individual entrepreneur.

Federal Law No. 74-FZ dated June 11, 2003 does not determine the name of the head of the peasant farm.

But Article 218 of Federal Law No. 127-FZ of October 26, 2002 provides that an application for declaring a peasant farm bankrupt is signed by an individual entrepreneur - the head of the peasant farm.

Thus, the contract should indicate the full name of the management body of the farm.

The rationale for this position is given below in the materials of the Lawyer System.

1. Civil Code of the Russian Federation, Part 1.

“Article 23. Entrepreneurial activity of a citizen

1. A citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur.

2. The clause is no longer valid.

3. The rules of this Code, which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

4. A citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of this article does not have the right to refer to the transactions concluded by him on the fact that he is not an entrepreneur. The court may apply to such transactions the rules of this Code on obligations associated with carrying out entrepreneurial activities.

5. Citizens have the right to engage in production or other economic activities in the region Agriculture without the formation of a legal entity on the basis of an agreement on the creation of a peasant (farm) enterprise, concluded in accordance with the law on peasant (farm) economy.

The head of a peasant (farm) enterprise can be a citizen registered as an individual entrepreneur*.”

2. Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”.

“Article 218. Features of the procedure for declaring an individual entrepreneur - the head of a peasant (farm) enterprise bankrupt

1. An application by an individual entrepreneur - the head of a peasant (farm) farm for declaring him bankrupt (hereinafter referred to as the application) may be submitted to the arbitration court if there is consent in writing from all members of the peasant (farm) farm.

The application is signed by an individual entrepreneur - the head of a peasant (farm) enterprise*.

2. In addition to the documents provided for in Article 38 of this Federal Law, the application must be accompanied by documents on: the composition and value of the property of the peasant (farm) enterprise;

the composition and value of property owned by members of a peasant (farm) enterprise by right of ownership, as well as the sources at the expense of which this property was acquired;

the amount of income that can be received by a peasant (farm) enterprise at the end of the corresponding period of agricultural work.

The specified documents are also attached by the individual entrepreneur - the head of the peasant (farm) enterprise to the response to the creditor’s application.”

A professional help system for lawyers in which you will find the answer to any, even the most complex, question.
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www.law.ru

On what basis does an individual entrepreneur (individual entrepreneur) operate: list of documents, acquisition of status

Individual entrepreneurship is becoming an increasingly attractive way for capable Russian citizens to conduct business activities with the aim of making a profit. A feature of the status is the actual dual state of individual entrepreneurs from the point of view of legislation. This means that in some situations it has to act as a legal entity, without actually having such status.

It is obvious that the current legislation has significant gaps in determining the legal position of an individual entrepreneur. Until now, there is no unified federal law regulating the activities and legal status of individual entrepreneurs. The problem of having grounds for legal activity creates confusion in law enforcement practice.

Registration documentation

The legal basis for working as an individual entrepreneur today is registration documents, which are issued by the local tax authority on a territorial basis. A distinctive feature compared to the registration of business entities is the provision according to which individual entrepreneurs do not need to develop constituent documents and charters.

During the registration process of an individual entrepreneur, it is enough to provide three documents:

• passport of a citizen of the Russian Federation;
• completed application form P21001;
• receipt of payment of the registration fee.

The result of registration actions is the provision of a unique registration number to the citizen - OGRNIP. This number becomes an identification feature when it is entered into the unified State Register.

As an additional identification feature, the taxpayer identification number is used, which is mandatory included in each individual entrepreneur agreement.

However, the OGRNIP certificate is not always sufficient for the work of an individual entrepreneur; this applies to licensed types of activities. Such permission can be obtained from the relevant organizations within whose competence it falls.

On rights and responsibilities: their interaction

The main right becomes opportunity to do business in any field permitted by law and under the conditions prescribed by it.

An individual entrepreneur is allowed to conduct any commercial operations related to the achievement of profit, within the framework of reached contracts and agreements. When conducting business, he has the right to use hired labor.

The legislation provides for the possibility of opening bank accounts to ensure settlements with suppliers of goods or services or other clients. The maintenance and use of bank accounts must be carried out in compliance with the law and imposes on the entrepreneur certain obligations specific to his legal status.

An important point when carrying out activities by an entrepreneur is the preservation of his inalienable civil rights. Thus, entrepreneurial activity is included in the total length of service when calculating pension benefits. In addition, he has the right to early retirement due to disability.

A number of legislative documents impose on the entrepreneur specific duties associated with the peculiarity of his way of activity. They prescribe him to perform a set of actions that he performs in relation to the Russian Federation, society, its participants and business partners.

The main inconvenience when studying this issue is the fragmented nature of such instructions placed in a huge number legal documents of a national and departmental nature.

The consolidation of society’s requests to the entrepreneur becomes a separate document the most important task of legislative bodies for the further development of private initiative in the state.

However, it is possible to group the main responsibilities in the following way:

Often aspiring entrepreneurs try to find job responsibilities for individual entrepreneurs. Such attempts are doomed to failure in advance, since such a consolidated document does not exist.

The reason for this is the fact that the entrepreneur is not an official. All of its obligations to the law and society are determined by individual legislative acts and regulations within the framework of its activities.

Protection of the rights of individual entrepreneurs is entrusted to the state bodies authorized for this purpose. Any member of society, including an entrepreneur, has the opportunity to obtain protection if his rights are violated. At the same time, there is the possibility of bringing him to justice in case of failure to fulfill obligations to the state and society within the framework of his legal status.

The principle of constructing legislation leads to this situation: the rights of some are protected by the obligations of others and vice versa.

One of the problems facing commercial law is formation of a single legislative act, defining the main obligations and rights of the entrepreneur. Such an action will allow the business community to formulate a more complete understanding of them and will contribute to the further development of such ways of operating.

Additional information on the responsibilities of an individual entrepreneur is available in this news release.

Organizational form

An individual entrepreneur is an individual who runs his own business alone. All activities of the individual entrepreneur are carried out in compliance with Civil Code RF.

Advantages

They are made up of the following circumstances:

• the simplicity of the registration procedure allows you to perform all the actions required by law yourself, without involving a lawyer;
• a simplified cash regime makes it possible to bypass some cash restrictions in a legal way;
• no taxation of property used in doing business;
• there is no need to involve accounting personnel, since all transactions are carried out according to a single ledger;
• tax audits of entrepreneurs are carried out much less frequently;
• if it is necessary to abandon business activities, the closure procedure is very simple;
• the ability to make independent decisions on running a business;
• tax rates are significantly lower.

Flaws

These include following:

• the possibility of attracting other investors as co-founders is significantly reduced, since an individual entrepreneur is not interesting investment capital;
• the business owner is deprived of the opportunity to sell the assets of the enterprise; it can only be closed or opened by changing the organizational form of doing business;
• usage own brand possible only after certification by a notary;
• the brand or information about it cannot be distributed until it has been registered;
• An individual entrepreneur is an individual who independently runs a business and bears full responsibility for it within the framework of the law.

This form of entrepreneurship can be considered as the first step, entailing further development in other organizational forms with a successful combination of circumstances.

Documents required for individual entrepreneur actions

For this form of registration, constituent documents are not drawn up. The only one legal basis for the work of an entrepreneur there is a OGRNIP certificate.

The absence of a Charter and Memorandum of Association with the distribution of responsibilities between the founders and an indication of their shares provides the entrepreneur with maximum freedom of action to make independent decisions.

The OGRNIP certificate indicates the unique registration number of the entrepreneur, which is an identification feature. The entrepreneur is also assigned a number according to the state register of the Unified State Register of Individual Entrepreneurs.

On what basis to conclude an agreement

The main objective of the treaty in its preamble is identification each contracting party as a subject and confirmation legality of actions when concluding an agreement. As mentioned above, the main features confirming the right of action for entrepreneurs are the OGRNIP and Unified State Register of Individual Entrepreneurs codes.

Documents for download (free)

Indicating the TIN in the contract is not enough, since, while identifying a person, it does not confirm the right to conduct independent business commercial activities. The other codes given correspond to this purpose. The preamble to the agreement and the details of the parties indicate the postal and passport details of the individual entrepreneur.

Features of the activities of peasant farms

A peasant farm is created by an individual or a group of persons with or without the formation of a legal entity on a voluntary basis. One person cannot simultaneously participate in several peasant farms.

The economy is created on the principle subsidiary liability, which means that what is not done by one member of the household must be done by another.

The state, by registering the creation of such an entity, undertakes the obligation to allocate land to it from available land funds and provide access to financial resources through credit organizations.

It should be remembered that the law does not provide for the procedure for registering peasant farms with government agencies.

Registration of peasant farms is carried out according to the following documents:

1. Agreement on establishment between members of the farm - if the number of participants is more than two people.
2. Application for state registration.
3. Copies of the manager’s personal documents.
4. Receipt for payment of state duty.
5. Statement of consent to switch to a special tax regime.

The registration procedure and status of peasant farms are in many ways similar to those for individual entrepreneurs. In both cases, the development of a Charter is not necessary. A registration certificate is issued in accordance with the established procedure.

Relationships with the manager

The entrepreneur has the right hire an individual who manages the enterprise in his absence.

An additional reason for appointing a manager may be the expansion of the enterprise, as well as the lack of experience in performing management functions.

Appointment to the position of director is made by issuing a notarized power of attorney, which lists control functions delegated to the manager:

• operational management of the production process;
• hiring and dismissal of employees;
• operational and long-term work planning;
• control over financial flows;
• signing contracts for the supply of goods and services, sales of products;
• Creation safe conditions labor for workers.

The entrepreneur is not responsible for the actions of the manager if he violates the law.

The entrepreneur can reserve certain functions for himself, these often include right of first signature of financial documents.

The official appointment of oneself as a director of an enterprise is usually not used, since it entails additional contributions to extra-budgetary funds. It is also common practice to transfer certain management functions to any employee without an official appointment.

The features of opening an individual entrepreneur for a beginner are described in this video.

znaybiz.ru

Peasant (farm) enterprise as a legal entity

I was recently approached with a question about the nature of a peasant (farm) enterprise as a legal entity (hereinafter referred to as a peasant farm), and with a non-idle purpose - this issue was discussed when resolving a specific court case. The fact is that the rules on peasant farms are located in subparagraph 3.1 of paragraph 2 of Chapter 4 of the Civil Code of the Russian Federation. As you know, subparagraph 3 of the same paragraph contains rules on limited partnerships. And the question was whether peasant farming is not a type of limited partnership, taking into account the norms in the Laws on Peasant Farming of 1990 and 2003.

The question of what type of legal entity a peasant (farm) enterprise can be classified as, in the theory of civil law, has only one correct answer - none! Peasant farm - family-work community individuals, leading agriculture and based on common property. It existed in this form for hundreds of years and did not cause any problems. And only when, in the 90s of the 20th century in Russia, they decided to rebuild a simple structure in which the personal element had always been of predominant importance in a corporate manner, problems began.

The motives that underlay this transformation are clear. Peasant farm participants, on the one hand, wanted to hide from liability for debts behind the mask of a legal entity, and on the other hand, to receive certain tax and accounting advantages that the peasant farm, which does not have the rights of a legal entity, did not have. And the legislator met them halfway, instead of creating a special regime for peasant farms that are not legal entities, which would contribute to their preservation along with other forms economic activity. It was just easier that way...

At the same time, I wanted the peasant farm as a legal entity to have some features that would make it possible to justify the need to recognize the independence of such an organizational and legal form. At all times, it was enough to ask the question: why a special form of legal entity is needed and how it will differ from a limited liability company (hereinafter referred to as LLC) - and the authors of the corresponding ideas began to “get confused in the evidence.” And immediately, as a qualifying feature for a peasant farm, the absence of limited liability for debts, which is available in an LLC, was proposed.

In the Law on Peasant Farms of 1990, it was recognized as a legal entity based on the shared ownership of participants. Such a combination was clearly illogical, although it was present in other legislative acts of those years, but on the basis of it it could be concluded that this is a corporation for the debts of which the participants bear unlimited liability for debts in equity. The head of the peasant farm spoke on behalf of the peasant farm. In the Law on Peasant Farms of 2003, it was interpreted in a traditional manner as a family and labor association of citizens, and not as a legal entity. This means that the members of the household were also responsible for its debts (although one could argue whether it was in equity or jointly and severally). The head of the peasant farm also spoke on behalf of the peasant farm.

Now the Civil Code has such an organizational and legal form of a legal entity as a peasant farm. It is a corporation based on the personal participation of citizens who also make property contributions. For the debts of a peasant farm, its participants, who should not be individual entrepreneurs, are liable in a subsidiary manner. At the same time, the question of who manages the peasant farm as a legal entity and, even, who can act on its behalf, has not been resolved. At the same time, it is not directly stated whether the liability of the participants is shared or joint. How to solve these issues?

Peasant farms are placed in paragraph 2, where, in addition to it, general partnerships and limited partnerships are regulated, however, in paragraph 3 of Art. 66 of the Civil Code specifies only two types of partnership - full and limited. Peasant farms are not among them. This means that a systematic interpretation of the Civil Code cannot help in resolving the issues that have arisen. The application to peasant farms by analogy of the rules on general partnerships or limited partnerships requires additional justification. It seems that peasant farms and partnerships have in common the fact that they are all so-called contractual legal entities, i.e. act on the basis constituent agreements. However, this alone is not enough. More compelling arguments are needed.

Of course, we can limit ourselves to saying that the person who should act on behalf of the peasant farm as a legal entity must be indicated in the agreement on the establishment of the peasant farm and, most likely, this will be its head. Moreover, the Law on Peasant Farms of 2003 and the rules on joint ownership of peasant farms that are not a legal entity are in effect. But what if this issue is not resolved in the agreement or it is stated that all or some of its members or some of them can act on behalf of the peasant farm as a legal entity? What will be the status of the remaining members, and how will their liability for the debts of the legal entity be structured in this regard?

Formally, all members of a peasant farm are liable for the debts of this legal entity in a subsidiary manner. Since it is not clearly stated that this responsibility is joint and several, hypothetically it can be interpreted as shared. In favor of this interpretation, oddly enough, are the provisions of Art. 322 Civil Code. Joint and several liability must be provided for by law or contract. Several debtors in a business obligation are liable ipso iure. However, since the peasant farm is a legal entity, it is it that participates in such obligations, and not the participants who are bound by corporate relations. And corporate relationships are not always entrepreneurial.

But even if the responsibility is not joint and several, but shared, is it fair to assign it to the participants of the peasant farm, who, for example, do not take part in the management of the farm and do not act in the turnover on their own behalf? The logic of the rules on partnerships suggests that liability for the debts of a legal entity, as a rule, is borne by the one who acts on its behalf or, at least, manages it. Therefore, investors in a limited partnership do not bear such responsibility. Only those who entered the partnership as an entrepreneur (general partners) bear full responsibility: they knew or should have known what they were doing.

Let us now take the situation in a peasant farm, where its head manages a legal entity and acts on its behalf, and the rest, say, work on the land. They are not entrepreneurs, and now, perhaps, the head of a peasant farm as a legal entity should not be registered as an entrepreneur, but there is no limitation of liability for members. The injustice of this situation will constantly push the courts to exempt from liability those who do not manage peasant farms. Therefore, it would be better to resolve questions about the joint or shared nature of the liability of participants for the debts of peasant farms, and whether they should answer equally, in the law.

Unfortunately, many of the amendments made to the Civil Code in last years, do not have the proper consistency, and sometimes are not thought out at all. One of the most striking examples is the rules on peasant farms as a legal entity. It was enough to carry out two or three logical operations to understand what problems in law enforcement will arise after the adoption of these norms. However, no one lifted a finger... I’m not even talking about the fact that peasant farms do not fit into the existing system of organizational and legal forms of legal entities, in the Civil Code its regulation is clearly out of place, and the question of how it relates to Peasant farms as a legal entity and as a community of citizens based on common property.

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Article: - Now.ru

Peasant (farm) enterprise (peasant farm) is an organizational and legal form of doing business in the field of agriculture. Legal basis functioning of the first such enterprises in modern Russia became the Law of the RSFSR “On Peasant Farming Enterprises” No. 348-1 of November 22, 1990 (lost force). Based on clause 3 of the final provisions of 74-FZ, farms created in accordance with the law of the RSFSR are not required to bring their constituent documents into compliance with the new legislation until 2021.

Profile normative act in the area under consideration is 74-FZ “On peasant farms” dated 06/11/03. According to Art. 1 of the mentioned law, the peasant farm represents association of citizens related by family ties. It has been established that its members jointly own assets and are engaged in the production, storage, processing and sale of agricultural products. The above definition must be taken critically:

• the concept of “citizen” is subject to an expanded interpretation; foreigners can also create farms;
• the condition of the presence of family ties is very conditional; members of a peasant farm may be fairly distantly related and belong to three different families, while five of them may not prove their relationship at all (Article 3 74-FZ);
• the possibility of implementing not only the listed, but also other types of activities is recognized, provided that they are directly related to agriculture.

Features of legal regulation in accordance with 74-FZ

• Work without creating a legal entity. persons (clause 3 of article 1).
• Application to peasant farms of the requirements of the Civil Code of the Russian Federation regulating the activities of commercial structures.
• A farm can be created by one person who is recognized as its head.
• Although its activities are related to agriculture, it is not recognized by default as an agricultural producer, but can acquire such status.
• For the purposes of interaction with credit institutions and government agencies, the legislation on small business is applicable to peasant farms (clause 1 of article 2).
• The mutual rights and obligations of the participants are regulated by the agreement on the creation of the peasant farm.

Requirements for organizational form

Now current legislation It is stipulated that two options are possible:

• The peasant farm operates as a legal entity (Article 86.1 of the Civil Code);
• it may not be legal. face (clause 5 of article 23 of the Civil Code).

Numerous legislative changes caused some confusion regarding the issue of acceptable organizational form farms. Let's look at the question from a chronological perspective:

• from the 90s to 2003, all peasant farms were legal entities. faces;
• from 2003 to 2013, all newly created enterprises do not have legal status. faces;
• since 2013, newly created organizations may or may not be legal entities. persons - the choice of organizational form is within the competence of the founders;
• Until 2021, peasant farms will exist with constituent documentation that complies with the legislation of the 90s.

A person managing the land alone is faced with a choice. He has the right:

• register with the Federal Tax Service at the place of registration as an individual entrepreneur;
• create and head a business - a legal entity in which he will be both the manager and the only employee.

If the peasant farm is deprived of legal status. person, and his manager is an individual entrepreneur, additional difficulties arise. In the unified structure of the enterprise, there are two parallel business entities created without forming a legal entity:

• farming;
• his head.

Civil legal relations are established between them. The business has a company name, current accounts, a seal, bears responsibility, and independently acts as a plaintiff and defendant in legal proceedings. It implements production activities. Its head, being an individual entrepreneur, enters into economic legal relations on behalf and in the interests of the enterprise.

All the nuances of registering this association are discussed in the following video:

Regulations under the Civil Code

For a long time, the status of such associations was regulated only by 74-FZ. The Civil Code of the Russian Federation only recognized the right of citizens to conduct production activities in the field of agriculture on the basis of an agreement on the creation of a peasant farm without creating a legal entity.

30.12.12 302-F3 was adopted, supplementing §2 “Commercial corporate organizations» Chapter 4 “Legal entity” with a new section 3.1. "KFH". It contains only one article of the same name – 86.1. However, it introduced fundamental changes to the regulation of farms. Since 2013, domestic farmers decide for themselves whether they need to create a legal entity or not.

According to the definition of Art. 86.1 of the Civil Code, peasant farms are a voluntary association of citizens for economic activities in the agricultural sector. It is based on the principles:

• voluntary membership;
• mandatory labor participation in activity;
• consolidation of property deposits.

The following is noteworthy:

• The farm is called a “voluntary association”. In other cases, this characteristic is applied by the legislator exclusively in relation to non-profit organizations. However, the structural attribution of Art. 86.1. to §2 of the Civil Code eliminates doubts regarding its commercial nature.
• Its members are both its founders and employees. This creates for them additional rights in relation to participation in management (general fees - the main governing body) and imposes specific obligations in the form of subsidiary liability for debts.
• The Civil Code does not mention family ties. There is a paradox: members of a farm without legal status. persons must be relatives, but members of a peasant farm organization must not.

Legal regime of assets

Regime of property of an association without legal status. persons is regulated by 74-FZ. The property of such a business entity belongs to its members (clause 3 of article 6). It must be taken into account that this enterprise does not have general civil legal personality. It is not an independent subject of law, but only an association of several subjects. Therefore, ownership of assets (land plot, reclamation systems, farm structures, livestock, equipment, transport, inventory, etc.) cannot belong to the farm even theoretically.

By general rule Peasant farm property belongs to its participants on the right of common joint ownership.

In case of division of property such shares are recognized as nominally equal(Articles 244, 253 of the Civil Code). It is noteworthy that this regime by default applies only to the common property of spouses and is considered inapplicable for commercial activities.

In the agreement on the establishment of an enterprise, its participants may provide for the application of the regime of common shared ownership to the assets of the enterprise. No other options are provided. Since this is an association of independent entities, only the regime of common (joint or shared - at the choice of the founders) property is applicable to its property.

The complexity of resolving property disputes between participants is determined by the fact that assets with different legal regimes coexist in the activity, for example:

• common property of members;
• common property of spouses, one or both of whom are participants in peasant farms;
• personal property of members.

In a case of divorce of members of a household, the claim for the division of common property is subject to separation into separate legal proceedings. All other participants are involved in its hearing as third parties without independent demands, since the court verdict will affect their interests.

In the case of a legal entity, it is endowed with ordinary civil legal personality. According to paragraph 2 of Art. 86.1 of the Civil Code, the property of a peasant farm belongs to him by right of ownership. It is noteworthy that the Civil Code did not determine the minimum authorized capital, as was done in relation to joint-stock companies or. At the same time, being manufacturing enterprise, it can work successfully only if a significant material and technical base is created.

Advantages and disadvantages

The choice of this organizational and legal form is due to the possibility of participation in federal and municipal government programs for supporting, subsidizing and developing farming. Among other things, they may stipulate a preferential procedure for the provision of land. By default (Article 39.18 of the Land Code of the Russian Federation) it is not such.

Peasant farms are fundamentally not suitable for investors who do not see themselves as employees of an agricultural enterprise. This organizational form assumes mandatory personal participation in work his brainchild. According to paragraph 3 of Art. 86.2 of the Civil Code, a person can be a member of only one household with the status of a legal entity. Thus, persons interested in managing business entities through a hired manager should create an LLC or JSC.

Association with legal status. faces are similar to any other commercial structures. The advantage of its creation is the absence of a minimum founding capital. However, this medal also has a downside. Its founders bear subsidiary liability for debts (clause 4 of Article 86.2 of the Civil Code). If the company’s property is not enough to satisfy the creditors’ claims, it is possible to recover the missing portion of personal property.

Peasant farm without legal status. Persons are a very problematic form of doing business. Some large-scale activities are inaccessible to such structures, for example, livestock breeding.

The relationship between the farm and its manager, the individual entrepreneur, is complex. In case of disability, old age or death of the head, the problem of succession arises. If the individual entrepreneur dies, the company will have to be closed and then re-registered under the name of another person.

Association without legal status. persons can only be governed authoritarianly, provided that all other members fully trust and rely on the head. 74-FZ instructs the latter to act in good faith and wisely, without infringing on the interests of the enterprise and its members (Article 16). Obviously, this vague wording will not help resolve disputes.

As an individual entrepreneur, the head of the household is liable for business debts with all personal property.

Rights and obligations

Peasant farms have the right:

• manage the land independently;
• exercise ownership of crops, agricultural crops, and manufactured products (applies to enterprises that have the status of a legal entity);
• erect outbuildings with the permission of the authorities;
• use common minerals (peat) and water resources for your own needs;
• carry out reclamation work, create artificial reservoirs;
• in case of seizure land plot receive compensation for expenses for increasing fertility;
• demand the establishment/termination of a land easement;
• transfer the plot or part of it for rent.

It is obliged:

• ensure the intended use of land;
• carry out measures to protect them;
• pay for land;
• not to infringe on the rights of other landowners and tenants;
• make timely payments to budgets of all levels and commercial counterparties.

Taxes and reporting

The choice of accounting, reporting and taxation system depends on basic factors:

• presence/absence of legal entity status;
• presence/absence of hired personnel who are not members of the peasant farm.

Taxes and contributions to extra-budgetary funds are paid on the salaries of hired employees in the same way as in relation to other employers. Heads of farms pay a fixed amount of contributions to the Pension Fund for themselves and their participants.

The choice of tax system is quite wide. Allowed use:

• conventional traditional scheme (OSNO);
• one of the options;

The last option is the most profitable and therefore often used. It assumes the application of a rate of 6% of income reduced by the amount of expenses.

A newly registered enterprise is obliged to notify the territorial inspectorate of the Federal Tax Service about the choice of the unified agricultural tax or the simplified tax system within 30 days from the date of registration (clause 2 of article 346.3 of the Tax Code). This is important because the default is . If the 30-day deadline is missed, you can change the tax payment scheme only before the start of a new tax period.

Accounting for income/expenses on the Unified Agricultural Tax is carried out using the cash method. Tax accounting is carried out on the basis of accounting information.

Reporting of peasant farm enterprises to the Unified Agricultural Tax in the absence of hired personnel includes:

• filing a declaration under the Unified Agricultural Tax to the Federal Tax Service by 31.03 of the year following the reporting year;
• maintaining in paper or in electronic format(until 2013, it was checked by the Federal Tax Service; today it is checked only during tax audits);
• submission of the RSV-2 form report to the territorial office of the Pension Fund of Russia before 01.03 of the year following the reporting year.

Payment of taxes and fees:

• no later than 25 days after the end of each half-year, the payment under the Unified Agricultural Tax is deducted;
• payment on income up to 300 thousand rubles. in 2016 it is produced until 12/31/16.

Contributions may be paid monthly or quarterly if desired. Payment of contributions with an annual income of more than 300 thousand rubles. made no later than 04/01/17.

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