It is also worth considering that the USRIP indicates exactly the address of the entrepreneur’s place of residence, but not the address at which he conducts his business (subparagraph “e”, paragraph 2, article 5 of the Federal Law of August 8, 2001 No. 129-FZ “On state registration legal entities and individual entrepreneurs).

The amount of liability for obligations

An individual entrepreneur is liable for his obligations with all his property (Articles 23-25 ​​of the Civil Code of the Russian Federation).

On the one hand, this gives additional guarantees to its counterparties. It is better to conclude an agreement with an individual in the status of an entrepreneur than with an LLC that this individual created as sole member. After all, an LLC will be liable only within the limits of the property that belongs to the LLC itself (Article 56 of the Civil Code of the Russian Federation).

On the other hand, realizing this advantage is quite difficult. An entrepreneur can sell his property at any time in order to try to avoid liability for debts. And then creditors will have to challenge these transactions in the complex bankruptcy proceedings of an individual entrepreneur.

In addition, it may turn out that at the time of the conclusion of the contract, the property of the entrepreneur (both immovable and movable) is already pledged in favor of other persons. In the event of bankruptcy, this will give an advantage to secured creditors, and other creditors will be at a disadvantage.

It is especially important to take into account the new rules on the registration of pledges of movable property, which came into force during the reform Civil Code RF. AT register of pledges of movable property search is available not only by collateral, but also by pledgers. Before concluding an agreement, it is worth checking what property the individual entrepreneur pledged.

Activities

All types entrepreneurial activity can be divided into those by which entrepreneurs:

• have the right to practice after their state registration without notifications and permits;

• have the right to engage after they notify the regulatory authorities;

• have the right to practice after obtaining a license (permit);

• not entitled to work at all.

The lists of activities that require notification or licenses (permits) are the same for entrepreneurs and legal entities. But entrepreneurs have more prohibitions than legal entities.

Advice:Before concluding an agreement with an entrepreneur, it is worth making sure that he is on legal grounds is engaged in the type of entrepreneurial activity that is the subject of the transaction, has received the necessary permits and notified the regulatory authorities.

The absence of a license is not grounds for challenging the transaction. But the counterparty of an entrepreneur acting without required documents, other negative consequences may arise, including claims from the tax authorities.

1. Types of activities that are allowed to be engaged immediately after registration

There is a principle: "everything that is not forbidden is allowed." Individual entrepreneurs have the right to engage in any type of activity, with the exception of those for which prohibition or restrictions are expressly established by law.

2. Activities that require notification

There are 37 types of activities that both entrepreneurs and legal entities can engage in only after they notify the regulatory authorities, for example, Rospotrebnadzor, etc.

In particular, these activities include:

• hotel, household, social services;

• retail trade and wholesale trade;

• transportation by car(except for transportation on regular transportation routes, as well as to meet their own needs);

• publishing and printing activities;

• demonstration of films;

• production of textile materials, garments, clothing, leather, leather products.

The complete list contains paragraph 2 of Article 8 of the Federal Law of December 26, 2008 No. 294-FZ "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Implementation of state control(supervision) and municipal control”.

The notification procedure is established by the Decree of the Government of the Russian Federation of July 16, 2009 No. 584 “On the notification procedure for the start of implementation certain types entrepreneurial activity".

If the entrepreneur did not send a notification, he is obliged to pay a fine in the amount of 3 thousand to 5 thousand rubles. If the notification contains false information, then the fine will be higher - from 5 thousand to 10 thousand rubles. (Article 19.7.5-1 of the Code of Administrative Offenses of the Russian Federation).

3. Types of activities for which a license is required

Entrepreneurs and organizations have the right to engage in certain types of activities only after obtaining a license.

The list of licensed types of activities is referred to in Article 12 of the Federal Law of May 4, 2011 No. 99-FZ “On Licensing Certain Types of Activities” (hereinafter referred to as the Law on Licensing), as well as special laws, for example, these are:

• medical activities (subclause 46, part 1, article 12 of the Law on Licensing);

• transportation by inland water transport, sea transport of passengers (subparagraph 20, part 1, article 12 of the Law on Licensing);

• private detective (detective) services (subclause 33, part 1, article 12 of the Law on Licensing, article 6 of the Law of the Russian Federation of March 11, 1992 No. 2487-1 “On Private Detective and Security Activities in Russian Federation»; hereinafter - Law No. 2487-1), etc.

For entrepreneurial activity without a license, individual entrepreneurs face a fine of 4,000 to 5,000 rubles. with or without confiscation of manufactured products, production tools and raw materials (part 2 of article 14.1 of the Code of Administrative Offenses of the Russian Federation).

For more details, see Types of activities for which a license from state authorities is required .

4. Types of activities that are prohibited for entrepreneurs

The types of activities that entrepreneurs cannot carry out are directly named in the law. When the law indicates that only legal entities are entitled to engage in a particular activity, this means that it is prohibited for entrepreneurs.

For example, they may not:

• engage in private security activities (Article 11 of Law No. 2487-1);

• develop and manufacture medicines (paragraphs 30-32, article 4 of the Federal Law of April 12, 2010 No. 61-FZ "On the circulation medicines”, Clause 1 of the Regulation on Licensing the Production of Medicinal Products, approved. Decree of the Government of the Russian Federation of July 6, 2012 No. 686);

• engage in television broadcasting and radio broadcasting (Art. 2, 31 of the Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the means mass media”, paragraph 1 of the Regulations on the licensing of television broadcasting and radio broadcasting, approved. Decree of the Government of the Russian Federation of December 8, 2011 No. 1025);

• develop, manufacture, test, repair, maintain aviation equipment (Article 7 of the Federal Law of January 8, 1998 No. 10-FZ "On state regulation Development of Aviation”, Decree of the Government of the Russian Federation of March 28, 2012 No. 240);

• produce, supply electrical energy, sell it to citizens (Federal Law of March 26, 2003 No. 35-FZ “On the Electric Power Industry”, Order of the Ministry of Industry and Energy of Russia of June 14, 2005 No. 119);

• sell and produce alcohol (they can only retail alcohol-containing non-food products, beer and beer drinks, cider, poire, mead) (clause 1, article 11, clause 1, article 16 of the Law on State Regulation of Production alcoholic products) etc.

Features of disputes under contracts with individual entrepreneurs

If we evaluate the risks of conducting a dispute, such counterparties as individual entrepreneurs occupy an intermediate position between individuals - consumers and commercial organizations.

1. Features beneficial to contractors of entrepreneurs

Consumer protection rules do not apply to contracts entered into by an entrepreneur in the course of his commercial activities. This follows from the definition of the term "consumer", which is contained in the preamble of the Law of the Russian Federation of February 7, 1992 No. 2300-1 "On Protection of Consumer Rights".

Moreover, all the provisions of the Civil Code of the Russian Federation, which establish special rules for business activities.

The most important example of such a rule is that persons engaged in entrepreneurial activities bear increased liability for breach of an obligation. They are responsible, even if the violation of the contract is not their fault (clause 3, article 401 of the Civil Code of the Russian Federation).

The court will apply the rules established for entrepreneurial activity, even if the citizen is actually engaged in entrepreneurial activity, but has not registered as an entrepreneur. A citizen is not entitled to refer in relation to concluded transactions to the fact that he made them without being an entrepreneur (clause 4, article 23 of the Civil Code of the Russian Federation).

If a dispute arises in what capacity a citizen entered into a transaction (as an individual entrepreneur or as an individual consumer), the court will only evaluate the content and purpose of the transaction. The fact that a citizen, when concluding an agreement, did not indicate his status as an individual entrepreneur, “does not entail automatic characteristic committed by him business transactions as committed as an individual” (Decree of the Federal Antimonopoly Service of the Urals District dated November 19, 2013 No. F09-10485/13 in case No. A76-24014/2012).

In such cases, the court may decide that the contract was entered into to extract economic benefit, which means that the rules on entrepreneurs apply to an individual.

2. Features that are dangerous for contractors of entrepreneurs

If the entrepreneur proposes to change the terms of the contract, which is clearly unfavorable for him, it is advisable to make a reasonable compromise and change the wording. Otherwise, he will have the opportunity to challenge such a condition already during the execution of the contract. This is possible if he can prove that:

• the proposed conditions are clearly burdensome for him, and also significantly violate the balance of interests of the parties;

• he was placed in a position that made it difficult to agree on a different content of the individual terms of the contract (i.e., turned out to be weak side contracts).

The fact is that in disputes between an organization and an entrepreneur, the court can regard the entrepreneur as weak side and apply those new protection mechanisms that appeared in the Civil Code of the Russian Federation on June 1, 2015.

Small businesses often provide services to the general population, various institutions. In such cases, the signed contract becomes insurance for the customer and for the individual entrepreneur. The document describes the rights with the obligations of the parties, deadlines and other working conditions.

Features of concluding contracts with an individual entrepreneur

By law, IP is allowed to carry out commercial activity. Information about it should be contained in the USRIP (single state register individual entrepreneurs) and in the tax certificate of a businessman. The procedure for concluding a contract with an individual entrepreneur differs little from signing an agreement with legal entities:

1. Both parties should formulate their own requirements as specifically as possible. If the subject of the agreement is the sale and purchase of any property, the document must contain records of its condition, method of transferring money, etc.
2. An individual entrepreneur is obliged to provide a guarantee for the work performed or the products delivered. Information about it should be in the document.
3. A businessman can draw up contracts on his own, but it is better to entrust this to a lawyer. If the customer and the contractor have a dispute, with an ambiguous interpretation of some points, the court may invalidate the agreement.
4. The individual entrepreneur and the client have the right to demand from each other any additional documents confirming the financial or legal status parties to the transaction. Copies or originals of extracts, certificates are attached to the agreement.
5. In case of violation of one or more clauses of the agreement, sanctions will be imposed on all property of the entrepreneur (apartments, cars, etc.) until further clarification of the circumstances. If a businessman fails to pay a fine or compensate for expenses incurred through his fault, then the property of a citizen will be sold, and part of the profit from the transaction will be used to pay off the debt.

Legal regulation

According to Article No. 161 of the Civil Code of the Russian Federation, a civil law agreement and any other transactions between business entities are concluded in a simple written form. This law applies to all contracts. Under Russian law, an individual entrepreneur is not formally considered a legal entity, therefore the process of concluding agreements between a businessman and citizens or institutions is regulated by Article No. 23 of the Civil Code of the Russian Federation.

How to draw up an agreement between an individual entrepreneur and an LLC

The procedure for issuing this document is practically no different from issuing a standard contract between two large institutions. It contains the details of the parties, the date of signing, a detailed description of the subject of the agreement. In case of doubt about the correctness of the contract, you can get an example of a contract with an individual entrepreneur in any law firm. The agreement, regardless of the specifics of the work, must contain:

• subject of the contract;
• preamble (general introductory part);
• obligations of the parties, their rights;
• duration of the agreement;
• contract amount;
• methods and terms of payment, penalty in case of delay in payments or non-fulfillment of part of the terms of the contract;
• responsibility between participants;
• the procedure for terminating the contract;
• rules for amending the agreement.

List of required documents from IP

Agreement with individual entrepreneur is subject to the applicable taxation system. When the subject of the transaction is a service, the parties must draw up an act. Before manufacturing, supplying products or carrying out any other type of activity, a small business entity is required to submit the following documents:

• photocopies of the main pages of the passport;
• an extract from the register;
• a copy of the business TIN (individual taxpayer number);
• photocopies of documents on registration as an individual entrepreneur and on entering information into the Unified State Register of Legal Entities.

Types of contracts with individual entrepreneurs

The document is classified depending on the type of work performed and the legal status of the client. Citizens should be aware that an individual entrepreneur can sign an agreement with both one customer and two or more. According to the law, all customers who will accept the result of a service or product must be recorded in an official form. You can sign with an individual entrepreneur the following types contracts:

• for the provision of services;
• deliveries between individual entrepreneurs and LLC;
• between an individual entrepreneur and an individual;
• rent;
• contracting;
• agency (when the entrepreneur represents the interests of the client);
• for the transportation of people or goods;
• managerial;
• loans (with and without accrued interest).

For the provision of services

This type of agreement is considered one of the most common. A contract for the provision of services is suitable for many situations. It can be issued not only if the individual entrepreneur undertakes to perform any work, but also when renting out property, providing a cash loan. The agreement can be accounting, transport, legal, intermediary. The contract for the provision of IP services contains the following information:

• a detailed description of the subject matter of the agreement;
• the term for the performance of the work provided for by the concluded document;
• the procedure for accepting and paying for the services rendered;
• fines provided for the inadequate quality of services rendered.

Supply agreement between IP and LLC

The transaction in this case has a simple written form. The parties must specify the essential terms of the agreement: the type of product, its quantity, the material used to manufacture the product, etc. The delivery time of the products is important, but without it the contract will not be considered invalid. If the date of transfer of the order is not set, the customer will have to wait until the goods appear in the IP warehouse. The document, in addition to the above conditions, must contain:

• range and quality of products;
• quality assurance;
• procedure and method of payment;
• terms of acceptance of goods;
• the responsibility of the parties;
• the procedure for the transfer of rights to products and the risks of its loss or damage from an individual entrepreneur to an LLC.

Between individual entrepreneur and individual

The purpose of this type of document is to consolidate the agreement concluded between a citizen and a businessman. Agreements between an individual entrepreneur and an individual can be concluded orally if the transaction amount is less than 10,000 rubles. In all other cases, a written contract is drawn up, which will contain:

• details of both parties;
• the subject of the agreement;
• place of work;
• amount, payment schedule;
• the responsibility of the parties;
• Bank details;
• terms of termination of the contract;
• conditions for assessing the quality of work performed;
• signatures.

Lease contract

According to this document, certain movable or immovable property is transferred for temporary use to a specific person or company. The form must contain the quantity and quality of the leased objects. The agreement must contain the amount of payment for the temporary use of the property. The lease agreement with the individual entrepreneur contains:

• Full names of the parties.
• Description of the property. The full name of the object, the address of its location, and the area are indicated.
• Estimated value of the leased property.
• The condition of the object at the time of signing the agreement and depreciation (depreciation).
• Liability for damage to property during rental.
• Obligations of the parties to repair, maintain the property in good condition.
• Ways, forms of calculation.
• Regulation on the possibility or impossibility of transferring property for sublease.
• Conditions for early termination of the agreement.

contract with IP

Institutions and individuals often hire PIs. An individual entrepreneur in such legal relations acts as the main contractor. He does one-time work for the client. A businessman can involve other small firms in the performance of tasks, but he will be responsible for their mistakes. The customer undertakes to accept the result of the services provided and pay the amount specified in the contract. The contract with the IP contains:

• Detailed description work to be performed.
• Deadline for assignments. The budget allocated for the implementation of the goals.
• The procedure for calculating fines for non-compliance with the tasks set in deadlines. This will help to quickly resolve disputes with the contractor without involving the court.
• The procedure for calculating the penalty due to the fault of the customer in the absence necessary materials, object access, etc.

The procedure and rules for drawing up an employment contract between an individual entrepreneur and an employee

Individual entrepreneurs are allowed to be employers for individuals. Since 2019, individual entrepreneurs have been considered micro-enterprises, so they can use a standard employment contract when hiring a citizen for work. The contract is open-ended and fixed-term. The last one is for 5 years. After the expiration of the specified period, the employee is either fired or re-prolonged the contract. The following items must be included in a formal employment contract:

• the name of the employer;
• full information about the employee, including his permanent place of residence;
• passport details of the employer and employee;
• labor functions of the employee;
• the amount of the salary (according to the current legislation, it must be not less than the regional minimum size wages, which are often higher than the federal minimum wage);
• start time;
• duration labor activity indicating the time of rest;
• guarantees, compensations;
• individual taxpayer number (TIN);
• validity period (for fixed-term contracts);
• date of conclusion of the employment agreement;
• the place where the contract was signed.

The SP may amend the terms and conditions labor contract. The employer must notify the employee within 14 days. The businessman keeps the duplicate notice for himself. The contract will be invalidated if the employer unilaterally changes any of the terms of the previously signed contract. In such a situation, an entrepreneur can be held criminally liable for infringing on the rights of an employee.

Video

The Supreme Court of the Russian Federation, in Ruling No. 302-KG17-382 dated February 27, 2017, recognized the conclusion of service contracts, where the performers had the status of an individual entrepreneur, as a tax scheme. The news immediately spread on the Internet, and not everyone understood the essence of the matter. Some, especially cautious, businessmen decided that it was no longer possible to conclude such agreements in principle. In fact, the situation is not at all so clear cut.

The Supreme Court did not prohibit the conclusion of contracts for the provision of services and performance of work by contractors registered as individual entrepreneurs, but only ruled in a specific case where labor relations were replaced by civil law ones.

The question of the possibility of ordering some work or services from the contractor without hiring him on the staff has already been discussed many times at various levels. Even the Constitutional Court spoke on this topic, moreover, the highest instance was in favor of the fact that the customer and the contractor have the right to independently choose the nature of the registration of their relations.

From the Definition of the Constitutional Court of May 19, 2009 N 597-О-О: reimbursable contract, there can be both an employment contract and civil law contracts (contracts, assignments, paid services, etc.), which are concluded on the basis of free and voluntary expression of the will of interested subjects - parties to the future contract.

What is the essence of the problem

Why, then, do the tax authorities so often recognize civil law contracts with performers (and not only with individual entrepreneurs, but also with ordinary individuals) as illegitimate?

The reason, as always, is in money, in the amounts that go to the budget. Judge for yourself - when registering an employee in a state under an employment contract, the employer pays insurance premiums for him in the amount of 30% of the amounts paid (if there is no right to apply reduced rates). Plus, 13% in the form of personal income tax is withheld from the employee.

If the performer is not accepted into the state, but he is an ordinary individual, then the situation changes slightly for the budget. Personal income tax from remuneration is withheld in the same amount - 13%, insurance premiums for compulsory pension and medical insurance, the customer, as in the situation with the employer, pays at his own expense. The only difference is in contributions to the Social Insurance Fund, they need to be paid only if the civil law contract provides for such a condition.

For the customer of services or works to conclude GPC agreement with an individual is more profitable than taking him on staff. Here, savings arise not only on contributions to the FSS, but also on vacation pay, because the performer does not need to be sent on paid leave. And, in addition, under a civil law contract, the contractor is not entitled to sick leave, overtime pay, overalls, the creation of a safe workplace, the provision of tools and materials, and so on.

But the biggest savings on taxes and contributions are obtained if the parties (customer / employer and contractor / employee) enter into a relationship as independent business entities. In this case, the customer is not responsible for how the contractor fulfills his obligations to the budget for the payment of taxes and fees. Plus, the contractor himself, if he works on the simplified tax system Income, transfers to the budget not 13% of personal income tax, but only 6% of income.

Formally, the IP performer does not violate laws, because he is legally registered and honestly pays taxes and fees for himself. “But you could pay more!” - decides the FTS. And, therefore, it is necessary to make sure that civil law relations are transferred to the labor plane. For this, even the most insignificant contractual conditions are used, which can be interpreted as inherent in an employment contract.

How not to do

Of course, employers are also not always white and fluffy and sometimes think about their own benefit, bypassing the law. In the case considered by the Supreme Court, there was a situation where the customer deliberately registered his employees as individual entrepreneurs in order to reduce the tax burden. Moreover, in the state there was only a single employee (manager), and the remaining 19 employees of the organization for the reception of scrap metal were entrepreneurs on the simplified tax system Income.

At the same time, all “independent business entities”, judging by the terms of the contracts with them, observed the work schedule with a lunch break, obeyed the manager, were financially responsible, performed duties in accordance with their job positions and specialties (cashier, logistician, foreman, locksmith) . Moreover, the tax reporting for these individual entrepreneurs was handed over by a representative of the customer by proxy.

Here, indeed, it is difficult to accuse the Supreme Court of a biased attitude towards business, because there was a substitution of real labor relations civil law. And for this, Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for a fine of up to 200 thousand rubles, plus additional taxes and contributions.

Real differences between labor and civil law relations

The ruling of the Supreme Court is a good illustration of the fact that not all labor functions can be transferred to the status of services or contract work. The activities of the contractor under a civil law contract must necessarily have a measurable result, adopted by the act. Moreover, the customer cannot manage the activities during which this result is expected to be achieved, but has the right to accept individual stages of work or services.

This is about the essence of the relationship. But there are still many cases when the relationship between the customer and the contractor in reality was not labor, but at the same time, the text of the contract contained conditions characteristic of labor contracts. That is, there was a discrepancy between the content and form of legal relations, and the tax authorities used this for their own purposes.

The table shows the main differences between labor and civil law relations and their registration in contracts.

Thus, contracts with individual entrepreneurs can still be concluded, but they must formalize real-life civil law relations and not contain conditions specific to labor relations.

Today, companies have the right to conclude an agreement for the provision of company management services with individual entrepreneurs for a fee. However, despite the legality of such relations from the point of view of the current legislation, regulatory authorities continue to consider such transactions as a way to evade taxes. Claims from the tax authorities will definitely not be avoided if the individual entrepreneur applies the simplified taxation system (USNO) "Income" (6%). In this article, we will try to figure out whether it is possible to challenge the claims of the department.

Is it possible to conclude an agreement for the provision of company management services with an individual entrepreneur

There is currently no clear solution to the question of the legality of concluding an agreement on the transfer of powers of the company's manager to an individual registered in the status of an individual entrepreneur. Formally, an enterprise has the right to appoint an individual entrepreneur under an agreement, although such a decision is dangerous from the point of view of paying taxes.

Direct prohibition on signing an agreement with an entrepreneur on the provision of services for the management of a legal entity for a certain fee current laws do not contain. But, on the other hand, part 3 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation for evading registration (improper registration) employment contract(conclusion of a civil law contract) at the time when there are actually labor relations, liability is provided for:

• a fine in the amount of 10 to 20 thousand rubles for officials;
• from 50 to 100 thousand rubles fine for legal entities.

An agreement for the provision of company management services with an individual entrepreneur - what is the tax benefit

In order to understand what the tax benefit is when concluding an enterprise management agreement with an individual entrepreneur, we present and analyze comparative characteristic labor and civil law relations (payment for the implementation managerial functions take equal to 100 thousand rubles):

After a simple analysis, the following conclusions can be drawn:

1. By concluding a civil law contract with an individual entrepreneur, the company bears where less expenses for fiscal payments.
2. The urgent nature of the relationship between the company and the entrepreneur (the GPC agreement always assumes a limited duration of the agreement) ensures that there are no problems with the dismissal and reduction of the worker.

How to competently conclude a contract for the provision of company management services with an individual entrepreneur

Agreement with an individual entrepreneur for the provision management services is by its nature a mixed GPC agreement, because in it you can find signs of contracts for the provision of services for a fee, trust management of property, assignments. It is permissible to sign an agreement with an individual entrepreneur, the subject of which is the transfer of powers of the manager, because:

• exercising the powers of the sole executive body is not a prohibited entrepreneurial activity;
• the law does not prohibit legal entities from transferring the powers of the sole executive body of an LLC to an individual entrepreneur under an agreement;
• pp. 2 p. 2.1 Art. 32 of Federal Law No. 14-FZ says that it is the individual entrepreneur who can perform the function of the manager, and not any citizen (that is, the law presupposes the emergence of civil law relations, and not labor relations, since the individual entrepreneur independently organizes economic activity at your own risk without subordination to the existing labor schedule at the enterprises).

Important! So that judges, in the event of proceedings with the tax service, do not reclassify the GPC agreement into a labor one, the terms of the provision of services, the result, and the possible number of stages of cooperation should be determined by the provisions of the agreement.

What points to pay special attention to (based on judicial practice)

When concluding an agreement on the provision of management services with an entrepreneur, it is important to ensure that the relationship does not have the signs of an employment relationship (described in the text of articles 15,, - Labor Code of the Russian Federation):

• It is impossible for the manager to obey the rules of internal work schedule enterprises.
• The work of the manager should not be paid according to official salary or by tariff rates(the result of the work should be paid, and not the process of fulfilling duties).
• An Order for employment in the specified position should not be issued, the size cannot be prescribed wages and other working conditions.
• It is impossible to accept an individual entrepreneur as a manager and assign specific labor functions to him.

In such contractual relations between the company and the individual entrepreneur:

• Acquires the rights and responsibilities to manage the current activities of the organization (based on federal law No. 14-FZ, contract and other legal acts).
• Receives the right to a monetary reward for their services.
• Referred to as "manager", designated as such in business correspondence, contracts concluded on behalf of the organization with counterparties, as well as in official and financial documentation.
• He is in a civil law relationship with the LLC on the basis of an agreement on the provision of services for a fee.

Legislative acts on the topic

Common Mistakes

Error: The company entered into an agreement for the provision of paid services for the management of an LLC with an entrepreneur. The price of the contract did not include compensation for the costs of the contractor and his remuneration.

Comment: The GPC agreement with the individual entrepreneur, to which the functions of the manager are transferred, must contain information on the compensation of costs and monetary remuneration.

Error: The entrepreneur, with whom the LLC entered into an agreement for the provision of company management services for a fee, did not include compensation for the costs incurred by him in exercising the powers of the sole executive body as part of the income from which tax under the simplified taxation system should be levied.

Document design features

Individual entrepreneurs have a special status, different from ordinary individuals, at the same time legal entities in the full sense of the word, they also do not count. This gives them a special legal status, which affects the procedure for concluding contracts with individual entrepreneurs.

We devoted a separate article to the features of consolidating labor relations between an individual entrepreneur and an employee - “”, here let's try to understand the features of commercial contracts with individual entrepreneurs that they conclude with other entrepreneurs or LLCs.

Agreement between sole proprietorship and LLC

In those situations where an individual entrepreneur interacts with an LLC with commercial purposes there must be an agreement between them. Of course, if an entrepreneur simply purchases a certain product or service from an organization at retail, there is no need to conclude an agreement between an individual entrepreneur and an LLC, but in all other cases it is mandatory.

The main requirement for any contracts with individual entrepreneurs is the availability of data on the legal status of an individual as an entrepreneur (preferably in full form, i.e. "Individual entrepreneur Petrov Petr Petrovich"), as well as an indication of the data of the Certificate of state. IP registration in USRIP. This is done, as a rule, either in the details of the signing parties, or directly in the first sentence of the contract, indicating between whom it is concluded (the phrase "... acting on the basis of Registration Certificate No. XXXXX ..." is used).

The use of the phrase “acting on the basis of a certificate” in an agreement with an individual entrepreneur is considered controversial by some lawyers, since the individual entrepreneur acts as a natural person. a person in any case, but is registered only to formalize his status. At the same time, in practice, such wording is found in most treaties.

It is important at the end of the contract, when describing the details of the parties signing it, to fully indicate the details of both the individual entrepreneur and the LLC. Naturally, full details are required from the company, including the full name, number and date of the registration certificate, and the data of the head. If the contract with the individual entrepreneur involves the participation of a trustee in relations with the company, then you need to indicate the date and number of the power of attorney, and also attach a copy of it to the contract.

In all other respects, the contract between an individual entrepreneur and an LLC must fully comply with the general requirements of the Civil Code applicable to all commercial contracts, namely, it must contain:

• data of the parties to the agreement;
• data of representatives of the parties, confirmation of the right to sign them;
• subject and conditions of mutual obligations;

You can download a sample contract with an individual entrepreneur at the end of the article.

Agreement between IP and IP

A separate category of commercial contracts are contracts between individual entrepreneurs and individual entrepreneurs. The formalization of such relationships is most often required to secure the conditions for cooperation between entrepreneurs in the supply of goods or raw materials, as well as in the provision of services. Such relationships cannot be formalized between individuals, since their essence boils down to extracting commercial benefits, therefore, a special agreement is concluded between an individual entrepreneur and an individual entrepreneur, which has some features:

• this document is signed on both sides by individual entrepreneurs;
• the content of the agreement relates exclusively to entrepreneurial activity;
• since the goal of the relationship between individual entrepreneurs is to gain benefits, then the contract between individual entrepreneurs and individual entrepreneurs necessarily fixes not only the nature of their relationship, but also the amount of payment for their obligations.

As with any contracts with individual entrepreneurs, a mandatory requirement is the designation of the legal status (IP), as well as an indication of the data of the State Certificate. IP registration (in the details of the parties or in the header of the agreement). Only in this case, this requirement applies to both parties signing the contract.

In practice, there are often cases when an agreement between an individual entrepreneur and an individual entrepreneur is not concluded, and entrepreneurs act at their own peril and risk. We do not recommend that you do so, as this is not only a violation of applicable law, but also significantly increases your commercial risks.

Thus, the special legal status of an individual entrepreneur in without fail should be reflected in contracts with individual entrepreneurs, both when registering relations with other individual entrepreneurs, and with organizations. In addition, contracts with entrepreneurs are concluded on general requirements Civil Code of the Russian Federation, but only in cases where the relationship with the individual entrepreneur goes beyond the interests of a private person.