Many citizens, working for someone else, dream of starting their own business. This desire is connected primarily with the fact that a person wants to be able to be his own boss. But not everyone is aware of the risks and responsibilities that fall on the shoulders of a businessman. Therefore, before starting a business, you should figure out how the individual entrepreneur is responsible for all his obligations, since the entrepreneur in this case will be responsible both to customers and to creditors and the state.
In this article
IP activities
Before understanding how an individual entrepreneur is responsible for his obligations with all his available property, it is necessary to understand the specifics of their activities. Speaking about individual entrepreneurs, it is worth noting that they occupy a separate position in this industry.
The role of these economic entities is played by individuals who undergo special registration in order to be able to carry out their activities. All material liability along with possible risks rests directly on their shoulders.
Although the IP is not a legal entity, in the event of unfavorable situations for it, when there are penalties or used in entrepreneurial activity, they fall entirely under the responsibility of the individual. The same can be said about the property of an individual entrepreneur, which is his individual property, since the boundaries in this case are too blurred, and it is not always possible to understand where the property is used for personal purposes and where for business activities.
Therefore, in practice, as a rule, there is no division into personal and commercial property, and, if necessary, a penalty will be imposed on all objects.
That is why entrepreneurs will be liable with all their property for any type of obligations.
Although in the first place, of course, the penalty will be imposed on commercial property, and only after, in the case when the first is not enough, on individual property.
IP property classification
Understanding the features legal status values of entrepreneurs, you can understand their classification. Thus, property can be:
- real estate (in turn, it is divided into commercial and intended for housing);
- movable property;
- finance, tangible assets;
- intellectual property;
- shares in property;
- pensions, salaries, interest on deposits.
Residential real estate includes the immovable property that is used for the residence of a merchant with his family.
The legislator does not limit a citizen in how many real estate objects he can have. Here, the economic agent should not forget about the taxation that will take place on a number of his property values. The same point should be taken into account when buying real estate, as well as selling it. The most simplified taxation system is valid for those entrepreneurs who operate on the simplified tax system, but this applies only to their commercial activities.
In case of non-fulfillment of any obligations, the subsequent collection of penalties and other material obligations, this property may be seized, and it will be sold in the manner prescribed by law. Such real estate will also include agricultural land.
The special status of residential property includes such a fact as joint shared property of spouses, as well as the right of minors and minor children to living space. When arresting and selling residential property by bailiffs, such legal subtleties will be taken into account.
To commercial real estate, include office space, industrial buildings, plots and other structures that can be used to generate income. This type of real estate is primarily subject to recovery, as it relates to fixed assets. economic activity performer.
Foreclosure on IP property
Legally, no property can be confiscated without legal grounds. Sole proprietors are particularly vulnerable to such sanctions, since they will suffer from all the values that they bought, used for both entrepreneurial and individual activities.
If legal entities are liable only within the limits of their main and working capital, and their founders can only lose their remuneration in the form of dividends, then for entrepreneurs everything is different.
Therefore, in case of non-fulfillment of their obligations individual entrepreneur should know that in this respect he is more protected than entity.
Special attention deserves the law that regulates the procedure for bankruptcy of an individual entrepreneur. Only a court can declare bankrupt an individual entrepreneur by its decision. Such a status is not a sentence, and after a while a person who has been declared bankrupt can again engage in entrepreneurial activity. But for this, a certain period of time must pass.
The legislation also regulates the procedure for individuals, including individual entrepreneurs, since the regime of private property of an individual entrepreneur is similar to the private property of an individual.
List of properties that do not qualify for foreclosure:
- house or other dwelling where the entrepreneur lives with his family;
- land near the house;
- personal belongings of the entrepreneur and his family members;
- jewelry for the personal use of the merchant and his family;
- household items that are used in everyday life.
If there is a confiscation of housing, then the individual entrepreneur, together with his family, must be relocated to temporary housing. This condition is mandatory for the supervisory and executive body, since even the debtor does not have the right to be left without a place of residence when the confiscated dwelling is his only dwelling.
It should be understood that the list of values that are not subject to recovery may change if new laws are adopted and amendments are made to regulatory documents.
Lenders for individual entrepreneurs can be both state bodies and other figures with whom the merchant has a contractual relationship.
The personal property that an individual entrepreneur may have is made up of different indicators. And, no matter how the values got to to an individual, it is important to understand that in the presence of debts, penalties will be imposed on all property, regardless of the source of its occurrence.
Individual entrepreneurs enjoy additional rights, however, they are also burdened with corresponding obligations. Any activity involves responsibility, and entrepreneurship - even more so. In this regard, irresponsibility can have much more serious consequences than in other areas of life. Business provides for strict observance of the framework established by law, and indispensable sanctions in case of being convicted of violating them.
How to avoid legal trouble
It goes without saying that individual entrepreneurs must comply with current legislative norms in their business activities. What specific responsibilities flow from this general formula?
- Know current regulations and monitor changes in tax, criminal, social and other legislative areas.
- Document all financial transactions.
- Correctly and timely complete the necessary documentation.
- In those activities that provide for a license, permit, patent, certificate, etc. settlement, do not neglect this special documentation.
- Without errors, draw up labor and financial relations with hired employees (if the individual entrepreneur uses their labor).
- Timely and in full to pay the due taxes, fees and contributions.
- Report on your activities according to the established scheme.
NOTE! Different types liability - material, criminal, administrative - threaten individual entrepreneurs for:
- failure to take proper action;
- performance is not complete;
- execution within an unspecified time;
- illegal actions.
Determine the type of responsibility
It is necessary to distinguish between the scope of responsibility and its type. The scope is determined by a particular Code, within which the rights and obligations of an entrepreneur are determined by law: it can be the Civil, Tax, Labor or Criminal Codes Russian Federation. The type of responsibility implies a certain form of penalties provided for certain violations within any of the listed areas. They may be as follows:
- material liability– compensation for damages, moral damages, lost profits, property losses;
- administrative responsibility- the appointment of fines, penalties, forfeits, interest, as well as restrictions on activities;
- criminal liability– forced labor, arrest or prison term (real or conditional).
NOTE! For the same offense, different forms of liability may occur, most often a choice is made between administrative or criminal. The decision is made by the court, based on the characteristics and extent of the violation.
Liability of individual entrepreneurs in the civil sphere
The freedom of an individual entrepreneur is that he conducts business at his own discretion, which can also be understood as “at his own peril and risk”: he is responsible for his activities on his own.
Obligations for which the IP bears full responsibility, must be fixed in certain documents:
- contracts;
- accounts;
- acts;
- receipts, etc.
They are supported not only by the will of the businessman himself, but also by his personal funds and property, no matter how much of it is invested in the business. There is no bankruptcy procedure for individual entrepreneurs: the damage caused to partners will have to be compensated at their own expense.
Exclusions from the property of an individual entrepreneur subject to liability
Art. 24 of the Civil Code of the Russian Federation removes essential items from the list of property sold as compensation:
- housing, if the individual entrepreneur has one;
- the land under it (if it is privately owned);
- home furnishings;
- household items;
- wardrobe;
- products.
Material sanctions IP can be presented for:
- causing property losses;
- profit lost through his fault;
- violation of contractual terms in terms of time or quality.
All these unfulfilled or improperly performed contractual obligations will be considered as such, if only they appeared in official documents. Otherwise, the responsibility will remain only on the conscience of the individual entrepreneur: it is unlikely to prove the legitimacy of the claims in court without documentary evidence.
IMPORTANT! Failure to fulfill the obligations of an individual entrepreneur can “get away with it” if the reason is not in his actions or inaction, but in force majeure circumstances (natural disasters, social disasters, etc.).
Responsibility under the Labor Code
Requirements labor law refer to an individual entrepreneur if he acts as an employer. When hiring employees, the individual entrepreneur bears full responsibility for them.
- The very first act of responsibility is formalization by concluding an employment contract and the obligations arising from this:
- registration in a pension fund;
- compulsory insurance;
- "white" salary.
- Material security: each employee has the right to receive the agreed remuneration on time.
- Material and administrative liability for errors in the organization of labor and moral damage in case of:
- illegal dismissal;
- wrongful suspension from work;
- delay in the issuance of labor;
- damage to employee property.
IMPORTANT INFORMATION! In court, it is enough for an employee to prove the very fact of causing harm, he is not obliged to prove the guilt of the employer (Article 1064 of the Civil Code of the Russian Federation).
Administrative responsibility
Code of administrative offenses is directly related to IP, since they are equated to officials unless otherwise provided by other acts. Individual entrepreneurs are most often brought to this type of liability in court, where the controlling body acts as the plaintiff.
Administrative penalties in the labor sphere
Basically, 2 types of punishments are used: “blow with the ruble” and disqualification.
- Fine a businessman will be discharged for violations of the legislation on labor protection and organization. The sizes are determined by separate articles of the Code of Administrative Offenses and the Labor Code of the Russian Federation.
- Disqualification- a ban to engage in certain activities from 1 to 3 years can be applied in case of recurrence of violations.
Economic Violations and Punishments
Monetary offenses dictate appropriate measures of influence. Individual entrepreneurs are subject to penalties for:
- work outside registration, without a license or permission;
- failure to inform or untimely provision of information about the change of any registration data (for example, about moving);
- violation of consumer rights is the most serious responsibility: they can be punished not only with a fine, but also with a 3-month suspension of activities and / or confiscation of goods;
- errors in cash discipline.
Pay taxes and sleep well (tax liability of individual entrepreneurs)
Tax legislation treats violations with particular trepidation and punishes negligence for the state treasury quickly and inevitably. Penalties are established in court or extrajudicially, if the amount of the fine does not exceed 5 thousand rubles. 1 tax violation for the reporting period.
What is the punishment for individual entrepreneurs for tax violations:
- fines in a fixed amount (for failure to provide documents, misrepresentation of information, violation of financial accounting, missing declaration deadlines, etc.);
- fines in the form of % of the amount of underpaid tax;
- penalties for late payments;
- blocking a bank account - for delaying tax returns.
Criminal liability for IP
The Criminal Code implies a larger scale of violations that could be administrative, but they can already be interpreted as crimes. In other words, these are the same offenses as in administrative area, but on a large scale and with deplorable results.
IMPORTANT! Criminal liability excludes administrative liability, and vice versa: both types of liability for the same violation are impossible.
Crime in labor relations
- Failure to comply with labor protection rules, as a result of which a serious injury to the health or death of an employee occurred.
- Refusal to hire a woman due to pregnancy or the presence of young children - the punishment can be administrative or criminal (forced labor up to 180 hours).
- Absence employment contracts with employees, if there are a lot of them, which caused great financial damage to the state, they can actually, and not conditionally, put them in jail for 2 years.
Economic crimes IP
- Violation of registration rules or its absence. For work without permits or licenses, providing false information in the documentation, especially repeatedly, criminal liability is possible.
- Operations with unmarked goods subject to mandatory labeling. The punishment, along with administrative fines, can be imprisonment for up to 3 years with confiscation of six months of income.
- Illegal lending (false information in documents) or malicious non-payment of loan obligations may be fraught with arrest or community service for a long period.
- The use of other people's details, trademarks and other similar designations will entail corrective labor for 2 years.
- Non-payers of customs fees can, in addition to paying a fine, go to jail for up to 2 years.
- Tax violations large scale may result in imprisonment of up to 1 year.
Illegal cashing
Sometimes organizations involve individual entrepreneurs in the process of cashing out income that they want to hide from taxation or obtained illegally. To do this, the following frauds are carried out: the owner of the “non-laundered” funds concludes an agreement with the individual entrepreneur on services or the supply of goods. At the same time, a product or service is selected that is difficult to track, for example, rent, repairs, intellectual property, software etc. In fact, they often do not turn out to be, and the goods are not sold, but the individual entrepreneur receives a large amount of money for them. Taking them off as income, he keeps the agreed percentage and returns the “laundered” amount to the owner.
If an individual entrepreneur is involved in the process of "laundering" illegal income, he can be held liable under one or more articles of the Criminal Code of the Russian Federation:
- tax avoidance;
- aiding in the concealment of taxable funds;
- falsification of documents;
- false entrepreneurship;
- legalization of illegal income.
Entrepreneur, remember!
- Your guilt must be proven and documented by the state authorities.
- If you are accused, you do not need to prove your own innocence.
- The Constitution of the Russian Federation guarantees the interpretation of doubts and contradictions in favor of those called to account.
- You can't be sued twice for the same offense.
Before registering an IP, many future entrepreneurs are studying the regulations of the current legislation of the Russian Federation regarding their future activities. And this is absolutely correct, given the high level of responsibility in this area. And it is the responsibility of individual entrepreneurs under the legislation of the Russian Federation that is one of the most important and topical topics.
In our publication today, we will consider what responsibility an individual entrepreneur bears in accordance with civil (property), labor, administrative, tax and criminal legislation.
Property liability of individual entrepreneurs for debts
Individual entrepreneurs are liable for their obligations with their property (Article 24 of the Civil Code of the Russian Federation). That is, the responsibility of the individual entrepreneur for debts extends to the personal property of the entrepreneur. The exceptions are essentials - the only housing and the land on which it is located, as well as household items, including clothing, shoes and food (Article 446 of the Code of Civil Procedure of the Russian Federation).
In case of harm to individuals and legal entities, the liability of the IP will be expressed in compensation for losses. Losses mean direct damage (real property losses) and lost profits in the form of lost income.
AT civil law contracts, as a rule, not only compensation for losses is provided. Other sanctions are also included in the text of the documents.
The most common type of sanctions of a property nature are penalties. Penalties can be in the form of fines (in solid form) or in the form of a payment, which depends on the duration of the violation (penalty).
Responsibility of individual entrepreneurs in accordance with labor legislation
If an individual entrepreneur is an employer, he must comply with the norms and requirements of labor legislation.
An individual entrepreneur is financially responsible to employees. Article 234 of the Labor Code of the Russian Federation refers to the obligation to compensate for lost earnings to an employee in such cases as:
- suspension from work;
- layoffs;
- delay in the issuance of a work book.
For the above actions on the part of the employer, the employee has the right to demand compensation for moral damage (Article 237 of the Labor Code of the Russian Federation).
When an individual entrepreneur causes damage to the property of an employee, the entrepreneur must compensate him for the damage in full. Damage is compensated for market prices that are valid at the time of compensation (Article 235 of the Labor Code of the Russian Federation).
Under the property of an employee is meant not only the property used by him to perform labor functions, but also personal items (which are in the office during working hours).
In order to claim compensation for damages, the employee does not have to prove the illegality of the employer's actions in court. In accordance with articles 233 of the Labor Code of the Russian Federation, it is enough to prove the fact of damage to property and indicate the amount of damage caused.
An employer who proves that he did not violate the law is not liable (Article 1064 of the Civil Code of the Russian Federation).
Administrative responsibility of individual entrepreneurs
An individual entrepreneur bears administrative responsibility in various areas - from environmental safety to paying taxes.
Businessmen and individual entrepreneurs are equated to officials in the Code of Administrative Offenses.
In accordance with Article 23.1 of the Code of Administrative Offenses of the Russian Federation, an individual entrepreneur is brought to administrative responsibility in court at the request of the control body.
In the field of labor relations
Administrative responsibility of individual entrepreneurs in the field labor relations(for violation of labor protection and labor legislation) is expressed in fines of up to 5,000 rubles. In case of repeated violation of a similar law, an individual entrepreneur may be disqualified for a period of 1 to 3 years (paragraph 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation). That is, the entrepreneur loses the right to hold senior positions in the executive management body (legal entity), carry out entrepreneurial activities (to manage a legal entity) and be a member of the board of directors.
In accordance with Article 5.28 of the Code of Administrative Offenses of the Russian Federation, if the employer evades participation in negotiations related to the conclusion of a collective agreement (and in case of violation of the permissible term for its conclusion), he will pay a fine of up to 3,000 rubles.
A fine of 3,000 rubles is also provided for those employers who do not provide information for collective bargaining (Article 5.29 of the Code of Administrative Offenses of the Russian Federation).
A fine of up to 5,000 rubles is provided for individual entrepreneurs who refused to conclude a collective agreement (Article 5.30 of the Code of Administrative Offenses of the Russian Federation).
Violation (non-fulfillment) of obligations under collective agreement threatens the entrepreneur with a fine of up to 5,000 rubles (Article 5.31 of the Code of Administrative Offenses of the Russian Federation).
In economic activity
If an individual entrepreneur works without registration as an individual entrepreneur, in accordance with Article 14.1 of the Code of Administrative Offenses of the Russian Federation, he will need to pay a fine of up to 2,000 rubles.
An individual entrepreneur who has changed his place of residence must notify the registration authority within three days (paragraph 5 of Article 5 of the Law of August 8, 2001 No. 129-FZ "On state registration legal entities and individual entrepreneurs). Without informing about the change of residence, the entrepreneur will pay a fine of up to 2,000 rubles (Article 14.25 of the Code of Administrative Offenses of the Russian Federation).
In accordance with Article 14.5 of the Code of Administrative Offenses of the Russian Federation, an individual entrepreneur who does not have a cash desk can be fined up to 4,000 rubles.
Tax liability of an individual entrepreneur
Penalties in a fixed amount are established for certain violations of tax laws. An entrepreneur who has violated the deadlines for providing information about opening (closing) bank accounts must pay a fine of 5,000 rubles in favor of the state (Article 118 of the Tax Code of the Russian Federation).
In accordance with the current tax legislation, in the event of a violation, an individual entrepreneur must transfer a share of his income to the state in such situations:
- in case of non-payment (incomplete payment of taxes) - the IP transfers from 20 to 40% of the amount of unpaid tax (Article 122 of the Tax Code of the Russian Federation);
- non-fulfillment by the tax agent of the obligation to withhold (transfer) tax - the individual entrepreneur transfers 20% of the amount to be transferred (Article 122 of the Tax Code of the Russian Federation).
Since 2006, the tax authorities have the right to collect fines from individual entrepreneurs on their own - out of court. The procedure is carried out on the basis of the decision of the head tax office. As a rule, this applies to unpaid taxes (for the tax period).
Violation of the registration period with the Pension Fund in accordance with Article 27 of the Law of 15.12. 2001 No. 167-FZ "On Compulsory Pension Insurance in the Russian Federation" threatens with a fine of up to 10,000 rubles for individual entrepreneurs.
For non-payment or incomplete payment of insurance premiums to the FIU, up to 40% of the premiums payable may be subject to recovery.
IP criminal liability
The liability of an individual entrepreneur in accordance with criminal law is similar to liability for violations in administrative law. The difference lies in the scale of violations and the amount of damage. Thus, for offenses of the same nature, but of different scales or resulting in different amounts of damage, an individual entrepreneur can be held either administratively or criminally liable.
In the field of labor relations
An individual entrepreneur can be fined up to 200,000 rubles (or sentenced to 180 hours of forced labor) in case of refusal to accept a pregnant woman or a woman with children under 3 years old in accordance with Article 145 of the Criminal Code of the Russian Federation.
Article 145.1 of the Criminal Code of the Russian Federation provides for liability for non-payment wages over two months.
Employees can recover from the employer cash with interest (Article 236 of the Labor Code of the Russian Federation). Compensation for losses to employees is regulated by the norms of Chapter 59 of the Civil Code of the Russian Federation.
In economic activity
Illegal business activity is one of the most common economic crimes. Article 171 of the Criminal Code of the Russian Federation provides for criminal liability for doing business without a license.
The entrepreneur is criminally liable in the following cases:
- illegal receipt of a loan (by providing a credit institution with knowingly false information about one's financial situation) and malicious evasion from repayment of accounts payable (Articles 176, 177 of the Criminal Code of the Russian Federation);
- legalization (laundering) of money or other property acquired by criminal means (articles 174, 174.1 of the Criminal Code of the Russian Federation).
Article 177 of the Criminal Code of the Russian Federation, as already noted, provides for criminal liability for malicious evasion from repayment of accounts payable (including refusal to pay for securities, bills of exchange and bonds).
Malicious evasion is interpreted as the presence of a real opportunity to pay off the debt (in conjunction with the intent for non-payment of the debt).
In accordance with the Criminal Code of the Russian Federation, an individual entrepreneur can be held criminally liable:
- for illegal use of someone else's trademark and a service mark (Article 180 of the Criminal Code of the Russian Federation);
- for coercion to make a transaction or for refusing to make it (Article 179 of the Criminal Code of the Russian Federation) up to 10 years in prison (for an organized group);
- for evasion of customs payments (Article 194 of the Criminal Code of the Russian Federation);
- evasion of paying taxes and fees, failure to fulfill the duties of a tax agent, for concealing property at the expense of which taxes should be collected (Articles 198, 199.1, 199.2 of the Criminal Code of the Russian Federation).
An individual entrepreneur who evades taxes is punishable by fines in the amount of 100 to 300,000 rubles or in the amount of wages (or other income) for a period of 1 to 2 years. The measure of punishment is arrest for up to 6 months or imprisonment for up to 1 year.
Responsibility of IP after closing
Responsible for their previous actions committed as an individual entrepreneur, and former individual entrepreneurs. In particular, individual entrepreneurs are responsible to the Federal Tax Service and extrabudgetary funds. Thus, the Constitutional Court of the Russian Federation in its decision of January 25, 2007 indicated that a person is obliged to answer for his debts, regardless of the loss of the special status of an individual entrepreneur.
The liability of an individual entrepreneur after closing continues to extend to all of its property, with the exception of property on which recovery cannot be imposed in accordance with applicable law.
The statute of limitations, during which a former individual entrepreneur may be held liable, is three years.
In conclusion, we also recall that you cannot be held liable twice for the same offense.
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An individual who conducts entrepreneurial activity bears property liability for his obligations as an individual entrepreneur for work within the framework of entrepreneurial activity. At the same time, administrative responsibility is also possible - for example, as an employer, as well as on other grounds, depending on the specifics of the activity.
Entrepreneurial activity of a citizen
If a citizen has decided to do business, then in accordance with paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, you can not establish a legal entity, but conduct entrepreneurial activities, but for this you need to register as an individual entrepreneur.
At the same time, even if a citizen conducts activities without registration, the court may recognize him as an entrepreneur and apply the relevant rules (clause 3, article 23 of the Civil Code of the Russian Federation).
It should be borne in mind that entrepreneurial activity is aimed at systematically making a profit and is carried out independently at your own risk (Article 2 of the Civil Code of the Russian Federation). That is, the presence of losses does not indicate that the citizen is not an entrepreneur.
And when registering, it must be taken into account that the property liability of an individual entrepreneur can occur for any obligation.
An individual entrepreneur is obliged to comply with all requirements imposed on him by law, for example:
- proper execution business (licenses, permits);
- submission of reports;
- payment of taxes and other payments;
- fulfillment of environmental and fire safety requirements;
- compliance with the requirements of labor legislation;
- many others depending on the type of activity.
And also to fulfill contractual obligations in relations with contractors. At the same time, it should be taken into account that the termination of activity as an entrepreneur does not remove responsibility for the entrepreneurial activity that the citizen conducted.
The property of an individual is unified, therefore, an individual entrepreneur is liable with all his property, including those that have nothing to do with the business. In paragraph 55 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated November 17, 2015 No. 50, it is indicated that Art. 24 of the Civil Code of the Russian Federation establishes, regardless of the status of an individual entrepreneur, the property liability of an individual and does not divide his property into the property of an entrepreneur and an individual.
At the same time, an individual can have income from both entrepreneurial and other activities. For example, an individual entrepreneur who provides educational services, can sell a personal car. And in this case, the audit can cover all the activities of a citizen, and an on-site tax audit can be carried out for several taxes with a single decision (Letter of the Ministry of Finance dated 01.24.2017 N 03-02-08 / 3210).
IP liability
Except government agencies, the individual entrepreneur has obligations in relation to counterparties, employees. In case of formation of debt from the entrepreneur, funds are collected from all accounts, at the expense of property. And in the event of termination of activity as an individual entrepreneur, funds can be recovered from wages. That is, the debt from entrepreneurial activity is the debt of an individual. And if in relation to the organization debts are paid at the expense of the property of the organization, and the founder and director are liable only in rare cases under certain circumstances, then the entrepreneur, by virtue of the law, is responsible independently. At the same time, the termination of activities does not affect the debts of the IP and the possibility of presenting claims against it. Any counterparty can bring a claim in relation to entrepreneurial activity against an individual - a former individual entrepreneur.
An individual entrepreneur is liable for obligations with all his property (Article 24 of the Civil Code of the Russian Federation). And even after the business closes, the entrepreneur may still be subject to debt claims (such as unpaid taxes) that he will have to satisfy. The limitation period for debts to creditors, including government organizations(tax and extrabudgetary funds), - 3 years.
If the entrepreneur has debts, first of all, funds will be debited from bank accounts, and only if there is a shortage of funds in the IP accounts, the recovery can be levied on property. At the same time, a married entrepreneur risks not only his personal property, but also property acquired in marriage. If the personal property of the individual entrepreneur is not enough for repayment, then creditors may demand the division of the joint property of the spouses. In the absence of a marriage contract, the spouses are considered to have equal rights to the property acquired during the marriage. Thus, an entrepreneur can also be liable for his debts with half of the total family property (see Article 34 and Clause 1, Article 38 of the Family Code of the Russian Federation).
Such complete “material responsibility” is the main disadvantage of the status of an individual entrepreneur. At the same time, many believe that in the case of large debts, creditors will take all the property from the entrepreneur, down to the last shirt. Meanwhile, the law indicates property that cannot be foreclosed and which in any case will remain with the entrepreneur.
According to Art. 446 of the Civil Procedure Code of the Russian Federation, this list includes:
- residential premises (parts thereof), if for a citizen-debtor and members of his family living together in an owned premises, it is the only one suitable for permanent residence premises, with the exception of property that is the subject of a mortgage and on which, in accordance with the legislation on mortgage, execution may be levied;
- land on which the only residential premises suitable for permanent residence are located, with the exception of those that are the subject of a mortgage and on which execution may be levied in accordance with the legislation on mortgage;
- items of ordinary home furnishings and household items, items for individual use (clothes, shoes and others), with the exception of jewelry and other luxury items;
- property necessary for the professional activities of a citizen-debtor, with the exception of items whose value exceeds one hundred established federal law minimum dimensions wages;
- used for purposes not related to the implementation of entrepreneurial activities, breeding, dairy and working cattle, deer, rabbits, poultry, bees, feed necessary for their maintenance until pasture (leaving for an apiary), as well as outbuildings and facilities necessary for their content;
- seeds needed for the next sowing;
- food and money for a total amount not less than the established subsistence level of the debtor citizen himself and his dependents;
- fuel needed by the family of the debtor citizen for cooking their daily food and heating during the heating season of their living quarters;
- means of transport and other property necessary for the citizen-debtor in connection with his disability;
- prizes, state awards, honorary and commemorative signs awarded to a debtor citizen.
Thus, an apartment (if it is the only one) cannot be seized and sold for debts, even if the entrepreneur does not have other property (see the ruling of the Constitutional Court dated 04.12.03 No. 456-O on this).