In addition to registration, an individual entrepreneur, in cases provided for by law, must re-register his activities. This concerns individual entrepreneurs registered before January 1, 2004. From January 1, 2005, they must carry out their activities on the basis of a new certificate. This is required by the Federal Law of 23.06.2003, No. 76-FZ "On Amendments and Additions to the Federal Law" On state registration legal entities and individual entrepreneurs ". By general rule in order to re-register, an entrepreneur must contact the tax office at the place of residence (Article 3 of the Federal Law of 23.06.2003). In some constituent entities of the Russian Federation (for example, in Moscow), special tax inspectorates are open for registration and re-registration of individual entrepreneurs. In the city of Magadan, the re-registration of individual entrepreneurs is carried out by the Ministry of Taxes and Tax Collection No.
For re-registration, the same documents are provided as for registration individual activities... The application, which must be submitted to the tax office for re-registration, is drawn up in the form approved by the Decree of the Government of the Russian Federation of June 19, 2002 No. 439. This application consists of 3 parts, it also includes sheets A and B.
The first 3 sheets contain information about the entrepreneur. His signature must be certified by a notary - a special line is assigned for this. In it, the notary must in turn sign, stamp and indicate his TIN.
Sheet A lists the names of the species economic activity, which the entrepreneur is already engaged in or is just about to do, and their codes, according to OKVED О29-2001 (approved by the Decree of the Gosstandart of Russia of November 6, 2001). In the application, you should indicate at least the first 3 digits of the code, that is, be sure to write the class and subclass of the activity. There can be an unlimited number of activities. All sheets A should be numbered and stitched, the number of sheets should be written on the back of the last of them. This information must be certified by the signature of the entrepreneur or notary. All this is required by clause 4 of the Requirements for the execution of documents used for state registration of legal entities, as well as individuals as individual entrepreneurs, approved by Decree of the Government of the Russian Federation No. 439.
Sheet B is completed by the inspector. It is a receipt in receipt of registration documents from the entrepreneur.
The methods of submitting documents for re-registration are the same: in person, through a proxy or by mail.
When an entrepreneur is re-registered, he receives a new certificate. This document is called - "Certificate of entry into the Unified State Register of Individual Entrepreneurs of an entry about an individual entrepreneur registered before January 1, 2004". Tax inspectors are obliged to issue it no later than the next business day after the entry of the entrepreneur into the Unified Register. The registration is made within 5 working days after the documents for re-registration are accepted. An individual entrepreneur can obtain a certificate either personally or by entrusting it to a confidant, or by mail. The new certificate indicates both the old and the new registration number. However, on the documents - contracts, powers of attorney, invoices - invoices and other documents - from now on it is necessary to indicate the details of the new certificate, because it is this that gives the entrepreneur the right to work since 2005.
As for the press, then, as noted by the expert of the magazine "Glavbukh" E.I. Meshiryakov, at the federal level, the issue of making seals is not regulated at all and the legislation does not provide for the replacement of the seal in this case. Thus, we can conclude that when re-registering, the seal does not need to be changed, although it bears the number of the old certificate. As a result of re-registration, the old certificate becomes invalid. This means that on the basis of it, a citizen will no longer be able to engage in entrepreneurship. In addition, since 2005, licenses that were issued for such a certificate, contracts concluded with an entrepreneur, as well as permits and other documents obtained for an old certificate have ceased to operate.
If an entrepreneur has not re-registered, but wants to continue to run his business, he will have to go to the inspection and receive a new certificate. In addition, from the beginning of 2005, he will not have the right to conduct entrepreneurial activity until he gets a new certificate. Those entrepreneurs who continued to conduct business without a new certificate will pay fines ranging from 500 to 2000 rubles (clause 1 of article 14.1. Of the Code of Administrative Offenses). It also provides for criminal liability under Article 171 of the Criminal Code of the Russian Federation, which provides for a penalty of up to 500,000 rubles, or 5 years in prison plus 80,000 rubles of a fine. According to A.N. Gueva, it should also be noted that when a citizen carries out entrepreneurial activity, although he does not have documents on registration as an individual entrepreneur and evades the fulfillment of obligations arising from transactions with third parties, stating that he did not pass registration, the court has the right apply to transactions with his participation the rules of the Civil Code regulating entrepreneurial activity. It should also be taken into account that for the implementation of such activities without registration, or without a license (if the presence of a license is required by law), a citizen can be held liable (administrative or criminal), as noted earlier. Also in clause 13 of the Resolution of the Plenum The Supreme Court RF and the Supreme Arbitration Court of the RF dated 1.07.1996, No. 6/8, it was clarified that disputes involving citizens engaged in entrepreneurial activity, but who have not passed state registration, are subordinate to courts of general jurisdiction, and not to arbitration courts.
If an entrepreneur, having received a certificate, changes his mind about engaging in individual entrepreneurial activity, he must only reimburse debts to partners and the budget. Paying off debts to suppliers and buyers is required by clause 4 of article 23 of the Civil Code of the Russian Federation. Debts on taxes and fees must be paid in accordance with clause 3 of article 44 of the Tax Code of the Russian Federation. Thus, we can conclude that the automatic termination of individual entrepreneurial activity does not exempt the entrepreneur from obligatory payments and debts to partners.
Since January 1, 2004, the Ministry of Taxes and Duties has been carrying out the functions of state registration of individual entrepreneurs and maintaining a unified state register of individual entrepreneurs. The state register must be completed in full by December 31, 2004 inclusive. To do this, all previously registered entrepreneurs and heads of peasant farms must submit an application to the tax authorities at their place of residence in the form, approved by decree governments Russian Federation.
After the introduction of amendments and additions, the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" does not allow the possibility of state registration of an entrepreneur for a certain period, all registration is unlimited. In this regard, entrepreneurs who have "urgent" registration should be aware of the following rules. Firstly, the presence of certificates issued before 2004 with a registration period of 2005 and subsequent years does not exempt from the obligation to submit an application for oneself to make an entry in the unified state register of individual entrepreneurs. Violation of this obligation entails the termination of entrepreneurial activity from January 1, 2005. Discharge of duty, established by law, entails the issuance of an indefinite certificate of entry into the register. Secondly, the presence of certificates issued before 2004 with a registration period of 2004 must submit an application to the tax authority before the expiration of the registration period. Otherwise, the citizen will lose the status of an individual entrepreneur.
Along with entrepreneurs, peasant farms (hereinafter referred to as peasant farms) are also being re-registered. Currently, peasant farms are registered according to the rules established for state registration of individual entrepreneurs. There are two types of peasant farms: peasant farms - legal entities (were created before the introduction of part one of the Civil Code of the Russian Federation, that is, before January 1, 1995), and peasant farms - not legal entities created after January 1, 1995. On the basis of Article 23 of the Civil Code of the Russian Federation, the heads of such peasant farms acquired the status of individual entrepreneurs from the moment of state registration of peasant farms. Based Federal law"On the peasant (farm) economy" KFH - legal entities can retain their status until 2010. Due to these features legal status PFs during 2004 must re-register only PFs that are not legal entities. The rest of the peasant farms will have to bring their status in line with the legislation by 2010.
IN practical work tax authorities very often the question arises: can citizens of Russia who do not have registration at the place of residence can register as individual entrepreneurs? An unequivocal answer is given to this question: yes, they can, while registration will be carried out at the place of temporary residence of the citizen.
Do I need to re-register those entrepreneurs who, in 2004, already submitted an application to the tax authority to amend their information about themselves? The answer to this question is unequivocal: yes, you still need to go through re-registration.
In accordance with Article 5 of the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs", a change in the passport data or place of residence of an entrepreneur entails the need to amend the Unified State Register of Individual Entrepreneurs. Information on these changes must be submitted to the tax authority within three days. Violation of this period entails bringing the entrepreneur to administrative responsibility in the form of a warning or a fine in the amount of 5,000 rubles. The sanction for violation is established by part 3 of article 14.25 of the Code of Administrative Offenses of the Russian Federation. The tax authorities draw up protocols on administrative offenses. Entrepreneurs should not hesitate to submit an application to make changes to the register about themselves. The submission of this application is not accompanied by the payment of a state fee.
The question often arises: is it necessary to re-register those entrepreneurs who, in 2004, already submitted an application to the tax authority to amend their information about themselves? The answer to this question is unequivocal: yes, you still need to go through re-registration. And the termination of entrepreneurial activity on the basis of a voluntary expression of will is allowed without going through the re-registration procedure. To do this, it will be enough to submit only two documents to the tax authority: a statement on the termination of entrepreneurial activity in the form approved by the decree of the Russian government, and a document confirming the payment of a state duty in the amount of 80 rubles.
And the last question: how can newly created entrepreneurs get registered with the tax authority? In connection with the entry into force of the Federal Law of December 23, 2003 N 185-FZ "On Amendments to the Legislative Acts of the Russian Federation in terms of improving the procedures for state registration and registration of legal entities and individual entrepreneurs" from January 1, 2004, registration both in the tax authorities and in extra-budgetary funds is carried out on the basis of information on state registration. At the same time, the entrepreneur does not need to register with these bodies "with his own hand", the specified work will be performed by the tax authorities and off-budget funds independently, without the participation of the entrepreneur. The procedure for interaction of tax authorities is currently by the decree of the Government of the Russian Federation of February 26, 2004 "On Amending the Decree of the Government of the Russian Federation of March 10, 1999 N 266, of June 19, 2002 N 438, N 439, N 440, of 16.10.2003 N 630 ", which provides for changes in the rules for maintaining the Unified State Register of Taxpayers, the Unified State Register of Legal Entities, the Unified State Register of Individual Entrepreneurs, changes in the forms of documents submitted during state registration, as well as the rules for interaction of registration authorities during state registration of reorganization of legal entities. persons created through reorganization.
From January 1, 2004 will come into force new order state registration of individual entrepreneurs established by the Federal Law of 23.06.2003 No. 76-FZ "On Amendments and Additions to the Federal Law" On State Registration of Legal Entities "(hereinafter - Law No. 76-FZ). registered individual entrepreneurs of information about themselves to the tax authorities. Thus, the innovations introduced by Law No. 76-FZ will not bypass those who are already engaged in entrepreneurial activities, nor those who are only planning to do so. Comments on the innovations are our constant author M. S Mukhin, Head of the Department of the State Drug Control Service of Russia.
Registration of individual entrepreneurs before and after January 1, 2004
With the entry into force from July 1, 2002 of the Federal Law of 08.08.2001 No. 129-FZ "On State Registration of Legal Entities" (hereinafter - Law No. 129-FZ), the bodies of the Ministry of Taxes and Duties of Russia acquired a new function for themselves - the implementation of state registration of legal entities. State registration of individual entrepreneurs at that time remained outside the competence of the tax authorities, which, however, was perceived by everyone as a temporary phenomenon. From January 1, 2004, the institution of state registration of legal entities and individual entrepreneurs becomes unified, and registration functions are transferred to the exclusive competence of the tax authorities. Starting from this date, the name of Law No. 129-FZ - "On State Registration of Legal Entities and Individual Entrepreneurs" has also changed.
The very procedure for state registration of individual entrepreneurs, described in Law No. 129-FZ and enacted from January 1, 2004, is somewhat different from the current procedure established by Section II of the Decree of the President of the Russian Federation No. 1482 dated July 8, 1994 "On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation "(hereinafter - Decree No. 1482). In this regard, one should speak rather not about toughening the requirements for persons wishing to register as individual entrepreneurs, but about a more precise formulation of these requirements. In any case, a comparison of Article 22.1 of Law No. 129-FZ with paragraph 6 of Decree No. 1482, in our opinion, does not allow us to talk about any significant expansion from January 1, 2004 of the list of documents required for state registration of an individual as an individual entrepreneur ... It is hardly possible to speak about the infringement of the rights of such persons and in connection with the insignificant (up to five working days) increase from January 1, 2004 of the period of state registration in comparison with the terms established by clause 7 of Decree No. period from the date of receipt of documents by mail).
Perhaps the most significant feature of the new order is the introduction from January 1, 2004 of a ban on state registration as individual entrepreneurs of certain categories of individuals (paragraph 4 of Article 22.1 of Law No. 129-FZ). Such persons include:
- individuals who are already registered as individual entrepreneurs;
- individuals recognized by the court as insolvent (bankrupt) due to the inability to satisfy the claims of creditors associated with previously carried out entrepreneurial activities (within a year from the date of acceptance judgment);
- individuals, in respect of whom the court has made a decision on the compulsory termination of their activities as individual entrepreneurs;
- individuals deprived of the right to engage in entrepreneurial activity for a certain period.
Article 3 of Law No. 76-FZ: after "re-registration-2002" - "re-registration-2004"
The second half of 2002 will be remembered by entrepreneurs for a long time by the unpleasant procedure called "re-registration" (see here). This term, being completely indistinct from the point of view of law, nevertheless, is firmly entrenched among tax officials and taxpayers. Unfortunately, the content of Article 3 of Law No. 76-FZ gives every reason to state that during the next year, individual entrepreneurs registered before January 1, 2004 will have to go through something similar.
Strictly speaking, this procedure should be called the submission of certain documents by individual entrepreneurs to the registering (tax) authorities. The list of such documents is established by Article 3 of Law No. 76-FZ and basically corresponds to the list of documents required for state registration of an individual as an individual entrepreneur (Article 22.1 of Law No. 129-FZ). Except for a very limited circle of individual entrepreneurs who are not citizens of the Russian Federation, most potential participants in "re-registration-2004" are required to submit the following documents to the registration (tax) authorities at their place of residence during 2004:
- a copy of the main identity document (passport);
- a document confirming state registration as an individual entrepreneur.
It seems important to emphasize that the provisions of Article 3 of Law No. 76-FZ do not contain an unconditional requirement to submit notarized copies of these documents to the registering (tax) authority. An individual entrepreneur has the right to submit ordinary copies, if at the same time the original documents are submitted to the registering authority. This mechanism is flexible enough. We can say that individual entrepreneurs are offered a choice between direct communication with a notary (when notarized copies are sent to the registering (tax) authority by mail) and direct communication with an employee of the registering (tax) authority (when the authenticity of copies of documents is confirmed by reviewing the originals). In any case, we can recommend individual entrepreneurs not to postpone the passage of this generally simple procedure.
Legal consequences of non-submission by individual entrepreneurs during 2004 to the registering (tax) authorities required documents are described in Article 3 of Law No. 76-FZ and differ somewhat from the legal consequences of the failure of legal entities to undergo "re-registration-2002".
First of all, failure to comply with the requirements of this article will automatically entail the deprivation of an individual from the status of an individual entrepreneur from January 1, 2005. Thus, the registering (tax) authorities will get rid of the "ballast" quite easily, without resorting to tedious judicial procedures. On the other hand, such an individual (unlike the heads of legal entities) is not subject to administrative liability provided for in parts 3 and 4 of article 14.25 of the Code of Administrative Offenses of the Russian Federation. The last circumstance, in the opinion of the author, can hardly be welcomed. It not so much allows unscrupulous individual entrepreneurs to avoid financial losses, but rather testifies to the "forgetfulness" of the legislator, who did not take care of introducing the necessary amendments to Article 14.25 of the Administrative Code of the Russian Federation arising from Law No. 76-FZ.
Again about the problems of by-law rule-making
The "re-registration-2004" procedure described in Article 3 of Law No. 76-FZ looks really simple. However, in practice, things may not look quite as smooth. As in the case of the "re-registration-2002", the Government of the Russian Federation rather quickly formalized the process of transferring information to the registering (tax) authorities. This was evidenced by the adoption of the decree of October 16, 2003 No. 630 "On the Unified State Register of Individual Entrepreneurs, the Rules for storing documents (information) in the unified state registers of legal entities and individual entrepreneurs and transferring them for permanent storage to the state archives, as well as on introducing changes and additions to the Resolutions of the Government of the Russian Federation of June 19, 2002 No. 438 and 439 "(hereinafter - Resolution No. 630).
In principle, the authority of the Government of the Russian Federation to issue such a document should not be in doubt. As follows from Article 4 of Law No. 76-FZ, the Government of the Russian Federation is instructed to "to issue normative legal acts that must ensure the implementation of the Federal Law of August 8, 2001 No. 129-FZ" On State Registration of Legal Entities ", taking into account the amendments and additions made to it by this Federal Law in terms of state registration of individual entrepreneurs". However, by" ensuring the implementation "of Law No. 129-FZ, the Government of the Russian Federation, in our opinion, somewhat exceeded its powers.
An example of this is the part of Decree No. 630, which concerns the introduction of amendments and additions to the Decree of the Government of the Russian Federation of June 19, 2002 No. 439 "On approval of the forms of documents used for state registration of legal entities and the requirements for their registration" (hereinafter - Decree No. 439 ).
This resolution (taking into account amendments and additions) approved the form No. Р27001 "Application for making an entry in the Unified State Register of Individual Entrepreneurs about an individual entrepreneur registered before January 1, 2004" (Appendix No. 21).
It is difficult to doubt that the registering (tax) authorities will require individual entrepreneurs to submit the specified document to undergo "re-registration". Meanwhile, as noted above, Article 3 of Law No. 76-FZ does not provide for the submission of such a document by individual entrepreneurs. As for Article 9 of Law No. 129-FZ, it gives the Government of the Russian Federation the right to establish requirements for the execution of documents submitted to the registering authority, but not to expand the list of such documents.
It should also be added that paragraph 14 of Form No. Р27001 provides for notarial certification of the applicant's signature, and therefore, an individual entrepreneur, most likely, will not be able to avoid communication with a notary.
"Re-registration" took place - what next?
The passage by an individual entrepreneur of the "re-registration" procedure is confirmed by the issuance of form No. P67001 "Certificate of making an entry in the Unified State Register of Individual Entrepreneurs about an individual entrepreneur registered before January 1, 2004" (Appendix No. 25 to Resolution No. 439). This Certificate must be issued by the registering (tax) authority no later than the sixth day from the moment the individual entrepreneur submits the necessary documents. Alas, before the amendments are made to Article 14.25 of the Administrative Code of the Russian Federation, failure to comply with this deadline does not entail the involvement of an unfair official registering (tax) authority to administrative responsibility.
It is very important not only for individual entrepreneurs, but also for their business partners, the question of the need to present a Certificate when concluding contracts after January 1, 2004. We believe that there is no need for this. The legal force of the transaction concluded with natural person, does not depend on whether or not this person has the status of an individual entrepreneur. This also implies the unconditional presence of the corresponding tax consequences for such a transaction.
A somewhat more complicated question is whether the presentation of a Certificate by an individual entrepreneur is mandatory in order to exempt a tax agent from the obligation to send information about the income paid to this entrepreneur to the tax authority. In accordance with paragraph 2 of Article 230 of the Tax Code of the Russian Federation, such information is not provided if the tax agent is presented, in particular, " documents confirming ... state registration as entrepreneurs without forming a legal entity "... It is easy to imagine that an individual entrepreneur who has not undergone "re-registration" can present to a tax agent his invalid certificate of state registration. Should a tax agent satisfied with this document bear tax liability under Article 126 of the Tax Code of the Russian Federation? Let us take it upon ourselves to assert that it is not. According to Articles 106 and 109 of the Tax Code of the Russian Federation a prerequisite tax liability is the fault of the tax agent. The law obliges him to demand from an individual a document confirming state registration as an individual entrepreneur, and not a Certificate confirming the legal validity of such a document. Nevertheless, if the tax agent wants to protect himself from the opposite (and, we note, quite likely) interpretation of the law by the tax authority, he should try to convince (but in no case force) the individual entrepreneur to submit a copy of Certificate Form No. P67001. However, the described disputable situations in any case cannot arise earlier than 2005.
Let's leave aside the problem of compliance of Law No. 76-FZ and by-laws and focus on the problems of individual entrepreneurs who are not experienced in legal casuistry.
First of all, during 2004 the entrepreneur should decide whether he intends to continue his entrepreneurial activity. Note that a fairly large number of entrepreneurs are concerned with the problem of correct and simple termination of their activities. Article 3 of Law No. 76-FZ provides them with a convenient opportunity to solve this problem - it is enough to refrain from going through "re-registration", and from January 1, 2005, the status of an individual entrepreneur will be lost. True, it should be remembered that the implementation of entrepreneurial activities by such persons after that date would be a violation of the law.
For those who decide to continue their entrepreneurial activity after January 1, 2005, it is possible to recommend, without waiting for queues at the notaries' door (best of all - in the first working days of 2004), to fill out and submit for certification Form No. Р27001 and, possibly, a copy of the passport ... The implementation of these simple actions will allow an individual entrepreneur to further not depend on the mode of operation of the registering body and the mood of its employees, by sending copies of the necessary documents by mail.
Article 3 of the Federal Law of 23.06.2003, No. 76-FZ "On Amendments and Additions to the Federal Law" On State Registration of Legal Entities ", which determined the procedure for re-registration, states that" in case of non-fulfillment by an individual registered in as an individual entrepreneur, prior to the entry into force of this Federal Law and the obligation provided for by this Article, the state registration of this person as an individual entrepreneur from January 1, 2005 becomes invalid. At the same time, after this date, this person has the right to register as an individual entrepreneur in accordance with the procedure established by Federal Law No. 129-FZ of August 8, 2001 "On State Registration of Legal Entities and Individual Entrepreneurs".
Therefore, based on the fact that you did not submit documents for re-registration, your state registration as an individual entrepreneur became invalid from 01.01.2005. Moreover, in this situation, the law does not provide for the issuance of a certificate of termination of state registration as an individual entrepreneur. In addition, since you had arrears in insurance premiums as of 01.01.2005 Pension Fund, then it is for this reason that the deregistration in the Pension Fund did not occur, and the accrual of insurance premiums continued.
Try to submit a request to the tax office to find out exactly whether your IE has closed. In accordance with paragraph 5 of Article 6 of the Federal Law of 08.08.2001 No. 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs", information on the place of residence of a specific individual entrepreneur contained in the Unified State Register of Individual Entrepreneurs (EGRIP) may be provided by the registering authority on the basis of a request submitted directly to the registering authority by an individual who has presented a document proving his identity in accordance with the legislation of the Russian Federation. Information is submitted within 5 working days from the date of receipt of such a request. Information can be obtained about the place of residence, the date of registration as an individual entrepreneur, the date of termination of registration, information about licenses, etc. If you have a document that contains the date of termination of registration - file a claim with Court of Arbitration, but not to the tax office, but to the Pension Fund. Only a court can recognize the accrual of insurance contributions to the Pension Fund illegal (after all, if your registration as an individual entrepreneur is terminated, you are not obliged to pay insurance premiums as an individual entrepreneur, and the Pension Fund does not have the right to accrue them), and cancel accruals (although the debt as of 01.01.2005 will still have to be paid). How to draw up a statement of claim and which ones to attach additional documents- consult a lawyer.
If the tax office does not submit a document on the termination of registration from 01.01.2005 due to the failure to submit documents for re-registration, then you can submit an application to the Arbitration Court for the tax office. And the closure of your IP is currently legally invalid, because it should have been closed on 01.01.2005.
