CC BY
62UDC 394.1
Shapsugova Marietta Damirovna
PhD, associate professor, senior researcher Institute of State and Law Russian Academy of Sciences ResearcherID: A-6840-2015 ORCID: 0000-0002-3741-0519 DOI: 10.24411/2520-6990-2019-10578 SELF- EMPLOYMENT: FEATURES OF LEGAL REGULATION
Abstract
In the context of the economic crisis and rising unemployment, there is an outflow of labor into the sphere of self-employment. Given the importance of social tasks being solved by self-employment, the needfor its transition to the legal level is growing. The difficulty in constructing a legal model of self-employment is the lack of unity of approaches to understanding self-employment. In the broad sense, self-employment is classified as entrepreneurial activity, in the narrow sense, individual labor activity. The article analyzes the legal regulation of self-employment in Russia and abroad through the prism of a theoretical understanding of self-employment.
Key words:self-employment, entrepreneurial law, entrepreneurial activity, individuals, entrepreneur
Research contextualization presupposes recognition of the fact that the development of sectors in general services and digitalization in particular, contribute to the emergence of tiny forms of business. The reasoning about business, overlook the fact that the vast majority of companies belong to the small and medium, including the significant share - this is the most modest enterprises with the owner and sole employee in one person. The last group includes many freelancers - self-employed, do not take into account by formal statistics. The share of individual self-employed in the total number in the EU is very high, and any of them does not fall below 50% with an average of 70 % [1].
The social significance of self-employment is excellent - providing themselves with income; individuals satisfy social needs. However, avoiding taxation allows them to set lower and more attractive prices for consumers. This circumstance gives the self-employed a significant competitive advantage.
The activities of self-employed can be compared with individual entrepreneurship, labor, and entrepreneurial activities and economic activities.
Labour relationship based on an agreement between the employee and the employer on the personal performance of the employee for a labor function in the interests, under the supervision and control of the employer, subordination of the employee to the internal labor regulations while providing the employer with working conditions stipulated by labor legislation and other regulatory legal acts containing labor law, collective agreement, agreements, local regulations, labor agreement (Article 15 of the Labor Code of the Russian Federation) .
The labor relationship is vertical. The relationship of self-employed citizens and their clients is horizontal. These relations differ in subject composition.
From an economic point of view, wages are remuneration for labor. Marx believed that the goods, in this case, are not labor, but labor power. Moreover, in this kind of relationship (labor), not all the labor expended is paid, but only the necessary.
In the case of self-employment, all expended labor is paid by the law of supply and demand. However, this compensation is not profit in the economic sense of the word. The entrepreneur collects all production goods together, from which his remuneration - profit.
In connection with the intermediate position of the self-employed regarding workers under labor law and individual entrepreneurs, the construction of a model of the legal status of self-employed causes specific difficulties.
The idea of legalizing self-employment is not new. The legal status of self-employed citizens, however, is similar to the one forcing in the USSR under the USSR Law of 11/19/1986 "On individual labor activity" [2] (hereinafter - the Law of the USSR of November 19, 1986), with the status of a citizen who carried out individual labor activity. According to Art. 1 of the this law, individual labor activity was the socially useful activity of citizens in the production of goods and the provision of paid services, not related to their labor relations with state, cooperative, other public enterprises, institutions, organizations and citizens, as well as with collective farm labor relations.
The financial interest of the state has led to the initiative to return self-employed citizens to the legal field. November 18, 2016 in the third reading pursuant to paragraph 29 of the Plan of Priority Actions for Ensuring Sustainable Development of the Economy and Social Stability in 2015, approved by Decree of the Government of the Russian Federation of January 27, 2015 N 98-r, which provides for the establishment of the possibility of payment by the self-employed tax citizens in connection with the application of the patent system of taxation and mandatory payments of insurance premiums simultaneously with their registration as individual entrepreneurs on the principle of "one-stop shop", and introduction of a special order of calculation and payment of tax on personal income and insurance premiums in the state budget funds for self-employed individuals engaged in certain types of income-generating activities without the involvement of employees and are not registered as individual entrepreneurs ("patent for the self-employed citizens") adopted a draft Federal Law On Amendments to Parts One and Two of the Tax Code of the Russian Federation and certain legislative acts of the Russian Federation, clause 16 of Article 83 of the Tax Code of the Russian Federation is supplemented by clause 7.3 as follows:
"Registration (deregistration) of an individual (with the exception of the persons specified in Article
2271 of this Code) who is not an individual entrepreneur and who provides services to an individual for personal, home and (or) other similar needs without hiring employees, the specified quality is carried out by the tax authority at the place of residence (place of stay - in the absence of an individual's place of residence in the territory of the Russian Federation) of this individual on the basis of any tax the body of its choice of a notice on the implementation (termination) of activities to provide services to an individual for personal, home and (or) other similar needs."
Article 217 is supplemented by paragraph 70. Taxes received in the tax periods of 20l7 and 20l8 are exempt from taxation. Income in the form of payments (remuneration) received by individuals who are not individual entrepreneurs from individuals for providing them with the following services for personal, domestic and (or) other similar needs:
on supervision and care of children, sick persons, persons who have reached the age of 80 years, as well as other persons in need of constant outside care upon conclusion of a medical organization;
tutoring;
for cleaning of premises, housekeeping.
The law of a constituent entity of the Russian Federation may also establish other types of services for personal, household and (or) other similar needs, the proceeds of which are exempt from taxation following this paragraph.
The provisions of this clause apply to individuals who have notified the tax authority under Clause 73 of Article 83 of this Code and who do not involve employees to provide the services specified in this clause.
Thus, the primary task is to detect and monitor self-employed citizens, after the tax holidays, they will have to choose for themselves a form of activity that provides for the payment of tax either under a special or general taxation regime.
According to the Federal Tax Service, published on the official website, 1977 people filed notifications on the implementation of activities to provide services to individuals for personal, home and (or) other similar needs on 01/01/2018 [3].
Based on the meaning of Article 23 of the Civil Code as amended by Federal Law of July 26, 2017 N 199-FZ "On Amending Articles 2 and 23 of Part One of the Civil Code of the Russian Federation", a citizen can carry out entrepreneurial activity without forming a legal entity, as in the case of registration as an individual entrepreneur, and without it, in relation to certain types of entrepreneurial activity prescribed by law. The employed nevertheless carry out certain types of entrepreneurial activity, but without registration. Moreover, registration is not a mandatory sign of entrepreneurial activity. Therefore, there is no contradiction in this approach.
It is logical to assume that the rules governing entrepreneurial relations and clause 3 of Article 23 apply to the activities of the self-employed.
Despite legislative changes, a borderline between individual entrepreneurship and self-employment still extremely difficult to hold . The content of the activity of a self-employed citizen does not differ from the activities of an individual entrepreneur. However, some formal differences can still be made. Based on the pre-
vious, the activities of a self-employed citizen are limited to certain areas and is based on personal work. The law establishes a rather narrow scope of employment of self-employed citizens, but in reality, it is not limited to the types of activities listed in the law. Its focus on the satisfaction of personal, household, and (or) other similar needs of individuals is also of legal importance.
At present, the interest of the state to self-employed citizens, in our opinion, caused primarily by fiscal reasons. This can explain the fact that no other issues than taxation issues are adopted in the law.
Self-employment in Russia is limited by the areas of activity listed in the law and requires registration, which means that registration is not possible in other areas of activity, and the lack of registration as an entrepreneur leads to administrative ( Article 14.1 of the Code of Administrative Offenses) and criminal liability (Article 171 of the Criminal Code).
The jurisdiction of disputes involving self-employed citizens is also debatable, however, with the introduction of amendments to part 1 of the Civil Code of the Russian Federation and the classification of the activities of self-employed as entrepreneurial activity without the formation of a legal entity, some clarity may have appeared on this issue. In the scientific literature, it was previously noted that we currently have a giant legal gap , which leads to the fact that these 30 million unregistered entrepreneurs (adult working citizens of the Russian Federation) violate their entrepreneurial (if only in their submission) rights to appeal to a court of general jurisdiction they cannot, because the special - economic - justice administered by the arbitration courts is in charge of resolving economic disputes in the field of entrepreneurship, and it is not possible to apply to the arbitration court, since they are not registered as individual entrepreneurs, is incompatible with the constitutional postulate of Russia as a rule of law. Fixed in a number of Resolutions (dated June 6, 1995 N 7-P , dated October 28, 1999 N. 14-P , dated July 14, 2003 No. 12-P , dated July 12, 2007 N 10-P, etc. ) the legal position of the Constitutional Court of the Russian Federation, according to which the court is obliged to investigate the factual circumstances on the merits and is not entitled to limit itself to the establishment of formal conditions for the application of the norm, since otherwise, it would lead to the fact that the right to judicial protection, enshrined in Article 46 (part 1) of the Constitution of the Russian Federation, would be substantially infringed, is powerless here: the courts simply do not accept such claims for consideration, and therefore they do not proceed with the investigation of factual circumstances [4].
It should be noted that the previously proposed measures did not bring the expected result and the number of self-employed, according to various estimates, is from 13 million to 22 million people [5].
At the moment, a new proposal of the Ministry of Finance of the Russian Federation is discussed, set out in the Guidelines for the budget, tax and customs tariff policy for 2019 and for the planning period 2020 and 2021[6] - the introduction of a tax on professional income as a special tax regime, the testing of which is planned to be conducted from 2019 in the pilot regions of the Russian Federation. This tax is attributed to sectoral measures that promote the formation of a fair, competitive environment and reduce the shadow sector.
The legal approach to the legal status of the self-employed takes them out of the scope of the labor legislation and deprives them of the corresponding guarantees provided by this legislation. In this regard, the Government of the Russian Federation introduced a draft Federal Law On Amendments to the Labor Code of the Russian Federation (in terms of improving the legal regulation of labor relations of certain categories of workers) [7]. The Ministry of Labor, which proposes the following amendments to Article 11 of the Labor Code of the Russian Federation, excluding the self-employed from the scope of labor law: "Labor law and other acts containing labor law do not apply to self-employed persons, as well as to individuals entering into labor relations with employees for personal service and assistance in housekeeping. "
Incomes in the form of payments (remuneration) received by individuals who are not individual entrepreneurs from individuals for the provision of the following services for personal, home and (or) other similar needs for the care and care of children, sick persons, persons over the age of 80 years, as well as by other persons in need of constant outside care at the conclusion of a medical organization; tutoring; for cleaning of premises, housekeeping, item 70, Article 217 of the Tax Code are classified as non-taxable income.
The law of a constituent entity of the Russian Federation may also establish other types of services for personal, household and (or) other similar needs, the proceeds of which are exempt from taxation by the Tax Code.
The provisions of Clause 70 of Article 217 of the Tax Code apply to individuals who have notified the tax authority following Clause 7.3 of Article 83 of the Tax Code of the Russian Federation that does not attract employees to provide the services specified in the Tax Code.
Federal Law of November 2018 27 , N 422-FZ "On the experiment to establish a special tax regime" tax professional income "in the federal city of federal significance Moscow and in the Moscow and Kaluga regions, and in the Republic of Tatarstan (Tatarstan)" specifies tax was introduced in the territory of the four subjects of the Russian Federation. Moreover, the specified tax regime can be applied not only by self-employed but also by individual entrepreneurs (Article 2), which further erodes the line between these business entities.
The Federal Tax Service of Russia has prepared an information letter "On Registration of Self-Employed Citizens" as of 05/11/2017. The Federal Tax Service of Russia has begun the registration of citizens providing services to individuals for personal, home and (or) other similar needs. According to the law, individuals who are not individual entrepreneurs and provide services to individuals for personal, home or other similar needs without the involvement of employees are subject to registration with the tax authorities based on relevant notifications.
The notification form for "self-employed" citizens was approved by order of the Federal Tax Service of Russia and registered with the Ministry of Justice of Russia.
Registration of "self-employed" citizens is carried out at the place of residence of the individual (place of
stay - in the absence of a place of residence on the territory of the Russian Federation). At the same time, a notification on the activities to provide these services may be submitted by an individUal to any tax authority serving individuals, of his choice.
When registering or deregistering an individual, a notification is not issued. At the request of an individual, a copy of the notice may be marked on the copy of the notice submitted.
No less important is the civil aspect of the legal regulation of the activities of the self-employed, since the civil status of an individual entrepreneur and a citizen who is not one is significantly different. Suffice it to say that the rules of the Civil Code of the Russian Federation on the activities of commercial legal entities apply to the entrepreneurial activity of an individual entrepreneur (with some exceptions), the rules regarding the civil liability of these entities, their insolvency (bankruptcy), and the regime of obligations to which they act are fundamentally different. Thus, the specificity of entrepreneurial obligations finds expression in the establishment of presumptions opposite to general ones, for example, the presumption of solidarity and entrepreneurial obligations with a plurality of persons ( paragraph 2 of Article 322 of the Civil Code of the Russian Federation); in the application of innocent (strict) responsibility for non-fulfillment or improper fulfillment of obligations in the course of entrepreneurial activity ( Clause 3, Article 401 of the Civil Code of the Russian Federation), etc. We believe that the extension of the legal regime of individual entrepreneurs to self-employed citizens in principle contradicts the idea of legalizing them since imposes on the latter such additional burdens that make legalization disadvantageous for them. [8]
The Tax Code of the Russian Federation, despite the changes made to the Civil Code of the Russian Federation, does not classify the listed (obviously, self-employed ) persons among the individual entrepreneurs [9].
Does the meaning of the applicable legislation the activities of self-employed to entrepreneurial activity?
According to paragraph 1 of Art. 23 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, except cases provided for in paragraph two of this paragraph. With certain types of entrepreneurial activities, the law may provide for the conditions for citizens to carry out such activities without state registration as an individual entrepreneur.
So, Federal Law Law from 27.12.2018 N 546-FZ "On Amendments to Part One of the RF Tax Code" in Article 2 formalized that individuals engaged in activities provided for by paragraph 70 of Article 217 of the Tax Code of the Russian Federation shall have the right to carry out such activities without state registration as an individual entrepreneur, subject to the requirements specified in paragraph 70 of article 217 of the Tax Code of the Russian Federation .
Thus, under civil law, self-employed activities are entrepreneurial but do not require registration as an entrepreneur.
The uncertainty of the legal status of self-employed can create practical problems. For example, due
to the lack of a self-employed current account, cash receipts in payment for work and services are made to their accounts of individuals. In the current system of bank compliance, This can lead to locking accounts, self-employed of 115 FZ "On countering money laundering of criminal proceeds and financing of terrorism". The media published messages about massive locks on self-employed accounts [10]; however, we could not find confirmation of this information.
In Belarus, an extensive list of activities not related to business is enshrined in Article 1 Civil Code of RB. So, for entrepreneurial activity, taking into account the Decree of the President of the Republic of Belarus N 337 of September 19, 2017 "On the regulation of the activities of individuals" not relevant: craft activities; agroecotourism services ; activities of citizens of the Republic of Belarus engaged in personal subsidiary plots in the production, processing and sale of agricultural products produced by them; lawyering; notarial activity of notaries; activities carried out within the framework of temporary scientific teams; the following activities carried out by individuals independently without involving other individuals under labor and (or) civil law contracts:
the sale by foreign citizens and stateless persons temporarily staying and temporarily residing in the Republic of Belarus, in trading places in markets and (or) in other places specified by local executive and administrative bodies, of no more than five days in a calendar month of paintings, drawings, sculptures, products folk art crafts, crop production and beekeeping (hereinafter - single sale);
sale by individuals, with the exception of persons, at trading places in markets and (or) in other places established by local executive and administrative bodies of bakery and confectionery products made by these individuals, finished culinary products, as well as paintings, drawings, sculptures created by them, products of folk art crafts; floriculture products, ornamental plants, their seeds and seedlings, animals (with the exception of kittens and puppies); medicinal plants, berries, mushrooms, nuts, other wild products; the provision of agricultural production services; grazing; tutoring ; cleaning and cleaning of premises; caring for adults and children, walking domestic animals and caring for them, purchasing food, washing dishes and cooking in households of citizens, paying a fee from the funds of a serviced person for the use of premises and housing and communal services, mowing grass on lawns, cleaning greenery territories from leaves, mowed grass and debris; mining ; music and entertainment services for weddings, anniversaries and other special occasions; the activities of actors, dancers, musicians, colloquial performers, performing individually; toastmaster services; photography, photographing; video recording of events; repair of sewing, knitwear and hats, except for the repair of carpets and rugs; design ; repair of watches, shoes , home furniture from customer materials; hairdressing and beauty services, as well as manicure and pedicure services and others .
Thus, Belorussian legislation does not introduce the term "self-employed". The activity is substantially similar to the activity of the self-employed in Russia. According to the expanded list, the legislation of Belarus does not refer to entrepreneurial. In addition, in the presentation is worth noting that paragraph. The Presidential Decree of 4.18.2019 number 151 "On Changing the Presidential Decree" found that the exercise by individuals, with the exception of foreign citizens and stateless persons temporarily residing in the Republic of Belarus, alone without the involvement of other natural persons under labor contracts and (or) civil contracts above-mentioned activities provided for in paragraphs thirty-fifth - forty-fourth part of the fourth paragraph of article 1 of the Civil Code Republic of Belarus, on the orders of organizations and individual entrepreneurs not related to entrepreneurial activity.
Ukrainian law refers to the self-employed as entrepreneurs and individuals engaged in independent professional activities. Tax Code of Ukraine in Art. 14.1.226 [11] understands the self-employed person as a taxpayer who is a natural person - entrepreneur or carries out an independent professional activity, provided that such person is not an employee within a business or independent professional activity. The independent professional activity of the Ukranian Tax Code recognizes the participation of an individual in scientific, literary, artistic, artistic, educational or teaching activities, the activities of doctors, private notaries, private performers, lawyers, arbitration managers (property managers, reorganization managers, liquidators), auditors, accountants, appraisers , engineers or architects, a person engaged in religious (missionary) activities, other similar activities, provided that such a person is not being an employee or an individual entrepreneur and uses wage labor of no more than four individuals .
We see that there is no single understanding of self-employment.
In this regard, conflicts are possible in connection with the conduct of self-employed activities in the territory of another state. Within the EAEU, this conflict is partially resolved by the Federal Tax Service information message dated January 6, 2019 [12]. By Article 5 of Federal Law No. 422-FZ dated 11/27/2018, citizens of the Eurasian Economic Union can register in Russia as self-employed. In addition to Russia, the EAEU includes Belarus, Armenia, Kazakhstan, and Kyrgyzstan. To do this, it is enough to have a TIN and an account in the Personal Account of a taxpayer-individual. The user needs to download the application "My tax" on the phone and register in it using the login-password from the Personal Account. Besides, a web version of the self-employed cabinet is available. If a citizen of the EAEU does not have a TIN, then following the principle of extraterritoriality of the Federal Tax Service of Russia and Clause 7, Article 83 of the Tax Code of the Russian Federation, it can be obtained at any inspection working with individuals within five working days.
As part of an experiment to introduce a tax regime for self-employed, EAEU citizens have the same duties and privileges as Russians, including the right to a tax deduction of 10 thousand rubles.
References
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[2] Law of the USSR of 11.19.1986 "On individual labor activity."// Vedomosti of the USSR. 1986. No. 47. Art. 964.
[3] https://www.nalog.ru/rn77/related_activi-ties/statistics_and_analytics/selfemployed/
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[5] GARANT.RU: http://www.garant.ru/article/1 195893/#ixzz5OyrFehsu (accessed 05.20.2019)
[6] https://www.minfin.ru/ru/document/?id_4=12 3006 (accessed 06.14.2019)
[7] http://regulation.gov.ru/projects#npa=82106 ( accessed 06.14.2019)
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[12] https ://www. nalog.ru/rn3 2/news/activi-ties_fts/8261361/(accessed 06.10.2019)
