An individual or legal entity is an individual entrepreneur. Is an individual entrepreneur a legal entity in the Russian Federation?

According to the civil code of R.F. An individual entrepreneur is an individual who has the right to engage in commercial activities. An entrepreneur is liable for his obligations with all his property.

What form of business is individual entrepreneurship?

Many people cannot understand the organizational and legal affiliation of an individual entrepreneur: is it an individual or a legal entity? Reply to this question indicated in Art. 23 of the Civil Code of the Russian Federation, according to which any citizen has the right to engage in labor activity as an individual entrepreneur without forming a legal entity.

The concept of a legal entity is interpreted differently: it is a registered organization (LLC) with founders and authorized capital. An individual entrepreneur conducts business without one.

It is worth noting that individual entrepreneur in many cases, has the same powers as an LLC. For example, he can also open a current account, enter into contracts and carry out almost the same types of activities, with the exception of some of them.

What's the difference?

Thus, each of the organizational and legal forms has its own pros and cons, and any existing individual entrepreneur can register an LLC by contacting the Federal Tax Service with documents, but he will have to pay taxes and fees for all forms of activity.

Example: citizen, being the founder of an LLC engaged in the production building materials decides to sell clothes through an online store. To do this, he has the right to separately open an individual entrepreneur, but he is obliged to pay taxes to the Federal Tax Service, contributions to the Pension Fund and Compulsory Medical Insurance for both organizations.

IN in this case, wondering - an individual entrepreneur is a legal entity. face or ordinary physical face? - it is necessary to proceed from the form of business that the citizen conducts. When resolving legal disputes, filling out documents, submitting reports, he will be a legal entity from an LLC, and an individual from an individual entrepreneur.

Consideration of controversial situations in court

In accordance with the Arbitration Procedure Code of the Russian Federation, the Arbitration Court has the right to accept appeals from organizations and individual entrepreneurs when the following disputes arise:

• Economic: for example, about debts.
• Administrative: when conducting a business that is not legally registered.
• Organizational: bankruptcy of LLC.
• Tax: non-payment advance payments on time.
• Corporate: when causing losses caused by co-founders, founders and participants to a legal entity.
• Transnational economic: in case of failure to fulfill obligations by a company registered in the Russian Federation in relation to foreign citizen, or vice versa.

When making a decision to impose penalties, the court has the right to be guided by data on the personal property of an individual entrepreneur. If a fine is imposed on an LLC, then the arbitration can only take into account the authorized capital of the organization.

Due to the fact that the individual entrepreneur is an individual, or an organization - legal entity, then all conflicts and disputes between them fall within the competence of the Arbitration Court and are resolved only in judicial procedure.

Addition

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Any citizen has the right to engage in commercial activities without creating a legal entity, provided official registration such a business. At the same time, individuals often have a question: Is an individual entrepreneur a legal entity or an individual? Understanding the topic is sometimes difficult, especially since the same Civil Code equalizes the requirements applied to legal entities and individual entrepreneurs (clause 3 of Article 23).

Is an individual entrepreneur an individual or a legal entity?

In simple terms, an individual entrepreneur is an individual who is given the right to conduct legal activities subject to registration of such status. When creating a business, a citizen continues to be called by his own name, but gets the opportunity to open a business. For example, there was a man Vasily Ivanovich Petrov, registered as an entrepreneur and became an individual entrepreneur Vasily Ivanovich Petrov. From this moment on, he can legally engage in business.

It would seem that there is nothing difficult in understanding an individual entrepreneur - this is an individual or legal entity. Meanwhile, upon detailed examination, confusion often arises, the basis for which is the clause in paragraph 3 of the article. 23 Civil Code. Literally the text reads like this: “unless otherwise follows from the law, other legal acts or the essence of the legal relationship.” This means that an individual entrepreneur is controlled at the legislative level in the same way as a legal entity, unless there is a special law that separately regulates the requirements for an entrepreneur.

From the above, we can draw the main conclusion - any citizen, including foreign nationals, has the right to engage in commercial activities after official registration in the Unified Register. In the process of work, an individual entrepreneur must follow the regulatory requirements developed for entrepreneurs, and in the absence of such, the legislative provisions common to individual entrepreneurs and legal entities. Next, in order to clearly understand whether an individual entrepreneur is a legal entity and in what situations, we will understand the similarities and differences between an individual entrepreneur and a legal entity.

Differences between individual entrepreneurs and legal entities

Like an organization, an entrepreneur is required to register under Law No. 129-FZ of 08.08.01 to open a business, the list of areas of which is much narrower for individual entrepreneurs than for legal entities. For obligations arising as a result of business activities, the entrepreneur bears full property liability (Article 24 of the Civil Code), except for those objects to which it is prohibited to apply penalties according to the norms of the Civil Procedure Code. This is the main difference between an individual entrepreneur and an enterprise: a legal entity is liable for obligations only in the amount of the authorized capital.

Another difference is that when creating a company, you must contribute to the articles of association. This is not required when starting a business. In addition, an individual entrepreneur can work without a current account, and the registration procedure is simplified and reduced to 3 working days - there is no need to develop constituent documentation, a passport, an application and a receipt for payment of the fee are enough. However, these are all minor nuances; meanwhile, there is another significant advantage of entrepreneurship, which is also the difference between an individual entrepreneur and a legal entity. We are talking about managing the income received. To use the funds, an entrepreneur does not need to pay additional taxes or confirm the intended use. And the founder of the organization must withdraw money as a receipt of dividends with the obligatory payment of personal income tax on the amount.

Similarities between individual entrepreneurs and legal entities

When carrying out commercial activities, an entrepreneur, on the same basis as a legal entity, can hire personnel under employment contracts and/or attract individuals from outside on the basis of civil law contracts. From the date of registration of a citizen as an individual entrepreneur, he has many responsibilities - to submit reports and pay taxes “for himself” and for his employees; on accounting, but to a lesser extent than in enterprises; on choosing the optimal taxation system; on registration of personnel changes, etc.

In a word, both legal entities and entrepreneurs must fulfill their responsibilities as employers, parties to contractual transactions and as participants in the system of tax relations with the state. But when it comes to responsibility, there are more differences than similarities. In addition to the already mentioned property liability, legal cases of individual entrepreneurs are considered in arbitration, and the amount of penalties, as a rule, for entrepreneurs is “an order of magnitude” lower than for enterprises. In general, there are many more differences than similarities between entrepreneurship in the form of an individual entrepreneur and in the form of an organization. What to choose?

What is more profitable to register for a business - an individual entrepreneur or a legal entity?

We have already found out the answer to the question: Is an entrepreneur an individual or a legal entity? The answer cannot be unambiguous, but according to its characteristics, an individual entrepreneur is more likely to be an individual. Which status is most beneficial for starting a business? To make the right choice, you need to weigh many factors. First of all, clarify the list of OKVED activities that you plan to implement. Next, consider whether you are ready to share powers with other founders and whether the requirement for full property liability for obligations is acceptable to you (Article 24 of the Civil Code).

Do not forget about the need to pay personal income tax on dividends when opening an enterprise, as well as the obligation to register a current account. Is there a clear picture? If not, make a table with a list of shortcomings of individual entrepreneurs and legal entities, and then evaluate each feature point by point. In conclusion, I would like to note that only individual entrepreneurs are allowed to work on a patent, that is, PSN. For some activities this tax regime helps to significantly save on paying fiscal payments without drawing up any reporting.

Is an individual entrepreneur an individual or a legal entity? This question is asked by citizens (and non-citizens too) quite often. Sometimes they also confuse an individual entrepreneur with an LLC, sometimes they want to “buy a ready-made individual entrepreneur,” and you can find a lot of similar examples. This can be called illiteracy, although many users are not required to know such “subtleties”. Therefore, we will simply try to eliminate this gap in knowledge.

The concept of “legal entity” is enshrined in:

1. A legal entity is an organization that has separate property and is responsible for its obligations, can acquire and carry out civil rights and bear civil responsibilities, be a plaintiff and defendant in court.
2. A legal entity must be registered in the Unified State Register of Legal Entities (USRLE) in one of the organizational and legal forms provided for by this Code.

There is no concept of “Individual entrepreneur” in the Civil Code of the Russian Federation. It is in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation:

“Individual entrepreneurs are individuals registered in in the prescribed manner and those carrying out entrepreneurial activities without forming a legal entity, heads of peasant (farm) farms. Individuals carrying out entrepreneurial activities without forming a legal entity, but who have not registered as individual entrepreneurs in violation of the requirements of civil law Russian Federation, when performing the duties assigned to them by this Code, do not have the right to refer to the fact that they are not individual entrepreneurs.”

Thus, we see their difference from legal entities. Legal entities are organizations. An individual entrepreneur is, in fact, an additional status for an individual, requiring mandatory state registration. Therefore, the individual entrepreneur is liable with all his property for his obligations.

True, recent amendments introduced by 488-FZ dated December 28, 2016, somewhat blur this line between individual entrepreneurs and legal entities by introducing into the legislation opportunities for tax authority introduce subsidiary liability for participants and directors of a legal entity without starting bankruptcy proceedings, after the company is excluded from the Unified State Register of Legal Entities, or because the company does not have money for bankruptcy, but it meets the criteria for bankruptcy.

Maintaining entrepreneurial activity by a person who has not passed state registration is prohibited in Russia. But before choosing the organizational and legal form of business, it’s worth figuring out whether an individual entrepreneur is an individual or a legal entity?

What is the difference between individuals and legal entities?

The procedure for registering individuals and legal entities conducting business varies significantly. To understand whether an individual entrepreneur is a legal entity, you need to understand the definitions given by law.

• Citizens (individuals) and legal entities acquire and exercise their civil rights of their own will and in their own interest (Article 1 of the Civil Code of the Russian Federation).
• 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 (Article 23 of the Civil Code of the Russian Federation).
• Upon state registration of an individual as an individual entrepreneur... (Article 22.1 of Law No. 129-FZ dated 08.08.2001).
• A legal entity is an organization that has separate property and is responsible for its obligations (Article 48 of the Civil Code of the Russian Federation).

From these provisions it is absolutely clear that the question of whether an individual entrepreneur is a legal entity should not even arise.

An entrepreneur is an individual, and an individual is a citizen or a person who has a certain legal capacity and capacity. After this, the individual can independently engage in business and manage the income received from it. Moreover, this business exists as long as the citizen is registered as an entrepreneur. After removing the IP from tax accounting the business entity ceases to exist.

A legal entity or organization does not depend on its founders, the composition of which may completely change. Shares in the authorized capital of a legal entity are sold, inherited, given as a gift or pledge. The organization can be completely purchased as a property complex, and it will continue to exist without its original creators.

And yet there is a certain confusion in the concepts of an individual and a legal entity. It is caused by Article 23 of the Civil Code, which states that the rules governing the activities of legal entities apply to the entrepreneurial activities of citizens. Thus, although an individual entrepreneur is undoubtedly an individual, the same rules can be applied to him as to commercial legal entities.

Administrative responsibility of an individual entrepreneur

It is especially important to understand whether an individual entrepreneur is a legal entity within the framework of administrative responsibility. Why is this so special?

If you open the Code of Administrative Offenses, you will notice in many articles that fines for organizations are several times higher than for individuals. Let's take for example a typical violation - the sale of goods or the provision of services in cases where this is established by law.

Article 14.5 of the Code of Administrative Offenses of the Russian Federation specifies the following sanctions:

• for citizens – from 1,500 to 2,000 rubles;
• for officials - from 3,000 to 4,000 rubles;
• for legal entities – from 30,000 to 40,000 rubles.

Who is an individual entrepreneur in this case - a legal entity or an individual (citizen)? Neither one nor the other, because the status of an individual entrepreneur in administrative legal relations is an official equal in responsibility to the head of the organization.

An indication of this is stated in Article 2.4 of the Code of Administrative Offenses of the Russian Federation. However, a reservation is made here that an entrepreneur is equated to an official, unless otherwise established by the Code. Indeed, there are norms that provide for special responsibility for individual entrepreneurs.

For example, in Article 14.1.2, fines for carrying out business activities in the field of transport without a license are:

• for citizens and officials - 50,000 rubles;
• for individual entrepreneurs – 100,000 rubles;
• for legal entities – 400,000 rubles.

Thus, answering the question whether an individual entrepreneur is a legal entity in administrative legal relations, we can say a firm “no.”

Features of an individual entrepreneur

Not so long ago, the question of whether an individual entrepreneur is a legal entity was of interest not to future businessmen, but to employees. The fact is that individual entrepreneurs received the right to enter into employment contracts and formalize work books only in 2006. Accordingly, employment in organizations gave workers more rights than employment with individual entrepreneurs.

I wonder what Labor Code still contains additional obligations of employers-legal entities, as more solvent business entities. Thus, Article 178 of the Labor Code of the Russian Federation obliges to pay severance pay employees upon dismissal due to staff reduction only in the organization. It turns out that although an individual entrepreneur basically bears the same responsibilities as a legal entity, there are still some concessions for him.

Entrepreneur in tax legal relations

Tax laws treat individuals and businesses more fairly, treating everyone as taxpayers equally. If we talk about the amount of fines for tax offenses, they are the same for both individual entrepreneurs and organizations.

And yet, there are certain privileges for entrepreneurs here too. In particular, individual entrepreneurs do not keep accounting records, which means they can easily do without an accountant. In addition, there is a special preferential tax regime (PTS), which is available only to individuals. And finally, tax holidays with the opportunity to not pay taxes for two years, only individual entrepreneurs are also provided.

Let's sum it up

1. Despite the fact that in some situations the law equates the rights and obligations of individual entrepreneurs with commercial organizations, the answer to the question: “Is an individual entrepreneur a legal entity?” – negative.
2. An individual entrepreneur is an individual who has been registered with the Federal Tax Service and received the right to run his own business.
3. An individual is an ordinary citizen, therefore his entrepreneurial activity continues until he is removed from tax registration. It is impossible to sell or donate an individual entrepreneur as a legal entity.
4. In administrative legal relations when collecting fines, an individual entrepreneur has the status of an official, unless certain articles of the Code of Administrative Offenses of the Russian Federation indicate otherwise. As a rule, fines for individual entrepreneurs are several times less than for legal entities.
5. As an employer Individual entrepreneur not much different from a legal entity, but organizations have more responsibilities to employees.
6. The Tax Code practically equalizes taxpayers of legal entities and individuals, however, it must be admitted that organizations fall under tax control more often than entrepreneurs. In addition, when conducting business, individuals use additional tax benefits, which are not available to legal entities.

Individual entrepreneur is a legal entity or an individual? Answer clearly the question “Is an individual entrepreneur a legal entity or an individual?” difficult - at least for the understanding of the common man in the street. If the answer to this question is unknown to you, but you need to figure it out, this article will help you.

Who is an individual entrepreneur and why is it important to choose the right form of doing business?

An individual entrepreneur is a person who, wanting to engage in entrepreneurial activity, registered with the tax office as an individual entrepreneur and received the corresponding right.

When understanding whether an individual or legal entity is an individual entrepreneur, it is necessary to understand the differences between individuals and legal entities.

A legal entity is an independent company that has the right to acquire rights and obligations on its own behalf. For example, when purchasing a product, it becomes the property not of the founders of the legal entity, but the property of the company, i.e. The organization independently acquires rights to property in its own name. Speaking about responsibilities, we can give a simple example - the obligation to pay taxes. Taxes must be paid by the organization, not its founders. The income tax of the individual entrepreneur is paid by the individual entrepreneur himself.

We emphasize: the organization acquires rights and obligations not on behalf of the persons who founded (organized) this legal entity. face, namely from one's own.

An individual, in turn, has personal rights and obligations, bears independent responsibility - he receives ownership of the assets he acquires, bears personal responsibility for paying taxes, etc.

Let's explain in simple words, why it is necessary to distinguish between the organizational and legal form. The point is that from the right choice a lot depends - the procedure for registering as a legal entity or individual entrepreneur, the procedure for paying taxes, the ability to engage in one or another activity (for example, individual entrepreneurs cannot sell strong alcohol, but LLCs can), the procedure for submitting reports and accounting, and much more. Accordingly, when choosing an organizational and legal form, you proceed from the tasks of the future business and answer the question - is it possible with one or another form of business to succeed in the chosen direction of business activity.

Is an individual entrepreneur a legal entity?

Is an individual entrepreneur a legal entity? The answer is clear - no.

When considering this situation, it is necessary to pay attention to the similar characteristics of an individual entrepreneur and a legal entity. persons:

• the obligation to maintain accounting, personnel records (if there are employees), and pay taxes related to business activities;
• availability of mandatory tax registration, the ability to have a stamp;
• increased (in comparison with an individual) responsibility for administrative offenses.

However, there are even more differences:

• An individual entrepreneur, unlike the founders of a legal entity, is liable for debts with all of his property.
• One individual entrepreneur cannot be registered by 2 or more persons, but one organization can.
• An individual entrepreneur does not submit as many reports as an LLC, and maintains simplified accounting.
• An individual entrepreneur has the right to choose a patent tax regime, but an LLC does not.

What do individual entrepreneurs have in common with individuals?

For ease of understanding, we can state: an individual entrepreneur is an individual who is registered with the tax office and can legally conduct business.

• Just like an individual, an individual entrepreneur pays taxes, but he has more of them, because he also pays tax on profits.
• like an individual, an individual entrepreneur is liable for debts with all acquired property, including a personal car, apartment, dacha, etc.
• An individual entrepreneur can file for bankruptcy, just like an individual.
• An individual entrepreneur, like an individual, can be a citizen of Russia, a foreigner and a stateless person.
• An individual entrepreneur, like an individual, can defend his interests in court, but issues related to business are considered not by courts of general jurisdiction, but by arbitration courts.

Conclusions

So, we have dealt with the question of whether an individual entrepreneur is a legal entity or an individual. By virtue of the law, an individual entrepreneur is an individual, but endowed with a special status and the ability to carry out entrepreneurial activities. There are plenty of pros and cons of running a business. You can read about them in our article: “Which is more profitable and easier to open an individual entrepreneur or LLC.” Some types of business cannot be run by an individual entrepreneur in principle, and this is a significant limitation. However, if the business is small, then individual entrepreneurs are an excellent alternative to legal entities.