The successful functioning of educational institutions largely depends not only on the professionalism of employees. Good funding greatly improves the material and technical base of any educational institution. Can an educational institution conduct business activities? And what kinds entrepreneurial activity educational institution provided by law? Article 47 “Entrepreneurial activity of an educational institution” spells out all the nuances of this issue, which helps to get a clear idea of ​​the rules for conducting this activity.

Educational institutions often experience an acute shortage of government funding. This leads to a deterioration in the quality of education, a shortage of the necessary equipment and teaching aids, and difficulties in working with students. To resolve a similar issue, educational institution can start a business. You can perform all manipulations without errors and violations of the law by familiarizing yourself with the relevant regulatory legal acts.

The concept of entrepreneurial activity in educational institutions

When certain property is assigned to an educational institution, for normal functioning. Due to the lack of finances from the state, there is a risk of a noticeable deterioration in the work of the educational institution. Entrepreneurial activity can quickly improve the financial situation of any institution.

Many heads of schools and other institutions do not know whether an educational institution can conduct entrepreneurial activities. Article 47 of the entrepreneurial activity of an educational institution spells out all the nuances of this activity.

These manipulations are performed with a goal that can be used to finance the institution.

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The requirements for running a business are as follows.

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Varieties of entrepreneurial activity in educational institutions

Types of entrepreneurial activity of an educational institution are different types. They differ in specifics, methods of transactions, goals. These activities include the following actions aimed at generating income in order to replenish financial condition fund of an educational institution:

• sale, as well as leasing of all premises and property of the educational institution;
• acceptance of equity participation in the functioning of other institutions, including educational ones;
• purchase and sale of various goods and equipment for work in an institution;
• purchase of shares, bonds, various securities in order to further receive income through their use;
• provision of intermediary services to other educational institutions and enterprises;
• carrying out various operations that are not related to the own production process of goods and services provided for by the charter.

Article 47 on doing business

Article 47 entrepreneurial activity of an educational institution contains the main criteria by which the legality of these manipulations is assessed.

An educational institution has the right to engage in entrepreneurial activities if it complies with the stipulated charter.

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Being engaged in one of the types of entrepreneurial activities of an educational institution, it is worth considering some rules.

1. Entrepreneurial activity of an educational institution is such only in that part, the finances received from which are not contributed to this institution for the needs of ensuring and improving the quality of the functioning of the institution, payment of wages to employees.
2. While engaging in entrepreneurship, an educational institution becomes equal to an enterprise and must comply with legislative acts created specifically for entrepreneurs.
3. If this activity begins to degrade the quality of the educational sphere in the institution, the director or local authorities have the right to stop this activity until the court makes an appropriate decision.

Regarding the issue of taxation of entrepreneurship in educational institutions, the article provides the following way out. If an educational institution is not a public institution and provides paid education services as a business activity, these services will not be considered as a business. This happens only if the income that the institution receives is used to cover the costs necessary for a full-fledged educational process. This item also includes the payment of salaries to employees of an educational institution.

If the director of the institution or the governing bodies fix that doing business has a negative impact on the educational process, they have the right to suspend it. However, the suspension of these activities is not provided for by the current legislation of the country, since it contains other guarantees for compliance with restrictions on activities that affect the operation of non-profit institutions. If a transaction entered into by a non-profit institution goes beyond the boundaries of its rights, it will be declared void. If business is carried out on an ongoing basis and is contrary to current legislation and goals non-profit institution, she will be forcibly stopped at a court session.

Compliance with all the rules and regulations contained in legislative documents guarantees the conduct of legitimate business activities, taking into account all the requirements for this area. At the same time, the occupation various types Entrepreneurship guarantees the ability to quickly and efficiently fill the main or additional fund of any educational institution. This allows us to provide high-quality education in conditions that are comfortable for students and teachers.

For a number of years, disputes between taxpayers and tax authorities related to the concept of entrepreneurial activity in the field of education have not stopped. The abundance of contradictory letters and clarifications from state bodies, the adoption of absolutely opposite decisions by arbitration courts in various regions of the country in no way contribute to bringing clarity and certainty to the resolution of the question: "What kind of activity of which educational organizations and under what conditions is entrepreneurial?" The answer to this question has serious legal implications. We list some of them:

1. The presence (or absence) of an educational organization of the obligations of a taxpayer for certain taxes.

In accordance with paragraph 1 of Art. 17 of the first part of the Tax Code of the Russian Federation, a tax is considered established only if the taxpayers (subjects of taxation) are identified. Art. 19 of the above Code provides that taxpayers are organizations that are required by law to pay taxes. According to paragraph 1 of Art. 1 Law Russian Federation"On the income tax of enterprises and organizations" payers of this tax are enterprises and organizations (including budget ones) that are legal entities under the legislation of the Russian Federation and carry out entrepreneurial activities. A similar rule is contained in paragraph 1 of Art. 2 of the Law of the Russian Federation "On Value Added Tax", according to which VAT payers are certain business entities engaged in production and other commercial activities.

Thus, in the absence of entrepreneurial (commercial) activities, educational organizations are not payers of VAT and corporate income tax and organizations. Consequently, such organizations do not have any taxpayer obligations for these taxes, including the obligation to submit tax declarations (calculations) to the tax authority. It should be noted that this is not about tax benefits, but about the absence of a subject of taxation, under such circumstances, an educational organization does not need any VAT and income tax benefits at all. The absence of entrepreneurial activity entails the absence of any tax liabilities for these types of taxes.

2. Extension of the legislation on the mandatory use of cash registers to bring cash settlements with the population to educational organizations.

The Law of the Russian Federation "On the use of cash registers in the implementation of cash settlements with the population" is valid in the field of entrepreneurial activity. Liability in accordance with Art. 7 of the above Law occurs when carrying out trade operations or providing paid services to the population on consumer market. When carrying out entrepreneurial activities, an educational organization is subject to legislation on the mandatory use of cash registers.

3. Extension of the consumer rights protection legislation to educational organizations (including in the provision of educational services).

The latter is beyond doubt in the light of the joint letter of the State Antimonopoly Committee of the Russian Federation dated September 14, 1998 No. NF / 6401 and the Ministry of General and Vocational Education of the Russian Federation dated September 11, 1998 No. 01-52-213 / 31-16 "on conducting inspections of educational institutions on the issue of compliance with the legislation of the Russian Federation on the protection of consumer rights in the provision of paid educational services.

It proposes general approaches to the definition of entrepreneurial activity in the field of education. Without claiming to be definitive, given material provides an opportunity for educational organizations to independently form a position on this extremely important issue, focusing, first of all, on the norms of the current legislation.

Consider the types of activities most often carried out by educational organizations with their simultaneous assignment to the entrepreneurial or non-entrepreneurial sphere. This classification will be the basis for determining the tax consequences of educational organizations conducting certain areas of activity. Therefore, the basic elements in the proposed classification are three main components of the financial result (gross profit) of any legal entity in accordance with Art. 2 of the Law of the Russian Federation "On income tax of enterprises and organizations", which are:

1. sales of products, works, services (main sales);
2. sale of fixed assets and other property (other sale);
3. non-operating income.

It should be noted that the definition of the sale of goods, works, services first appeared in the current legislation with the adoption of the first part of the Tax Code of the Russian Federation. According to paragraph 1 of Art. 39 of the first part of the Tax Code of the Russian Federation, the sale of goods, works or services is recognized, respectively, the transfer on a reimbursable basis (including the exchange of goods, works or services) of ownership of goods, the results of work performed by one person for another person, the provision of services by one person to another person, and in the cases provided for by this Code - and free of charge.

For taxation purposes, any property sold or intended for sale is recognized as a commodity (clause 3, article 38, part one of the Tax Code of the Russian Federation).

Work for taxation purposes is recognized as an activity, the results of which have a material expression and can be implemented to meet the needs of organizations and (or) individuals(clause 4, article 38 of the first part of the Tax Code of the Russian Federation).

A service for tax purposes is recognized as an activity, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity (clause 5, article 38, part one of the tax code of the Russian Federation).

1. Sales of products, works, services

1.1. Implementation of paid educational services by state and municipal educational institutions

In state and municipal educational institutions educational services are subdivided into basic (within the framework of the main educational programs and state educational standards, financed from the relevant budget) and additional (outside the framework of the relevant educational programs and state educational standards, carried out with the involvement of extrabudgetary funds).

Basic educational services provided at the expense of budgetary financing are not entrepreneurial activities. Additional educational services provided at the expense of extra-budgetary proceeds from persons not directly related to consumers of educational services (from sponsors, donors, philanthropists, etc.) are also not entrepreneurial activities, since there is no counter-sale to the person paying for these services (services cannot be recognized as paid, provided on a reimbursable basis). Funds received from sponsors, donors, philanthropists for the provision of additional educational services to third-party consumers are considered as targeted income.

Approximate list of paid additional services state and municipal institutions and the necessary conditions the introduction of such activities are given in the letter of the Ministry of Education of the Russian Federation dated July 21, 1995 No. 52-M "On the organization of paid additional educational services." Paid additional educational services include:

• in-depth study of subjects (the study of special disciplines in excess of the hours of the program for this discipline, provided for by the curriculum);
• tutoring with students from another educational institution (if desired, by consumers of educational services, tutoring with students of this educational institution is also possible);
• various courses: preparation for entering an educational institution, studying foreign languages, advanced training, retraining of personnel with the development of new specialties (including driving a car, typing, shorthand);
• various circles: for learning to play musical instruments, photography, cinema, video, amateur radio, cutting and sewing, knitting, home economics, dancing, etc.;
• the creation of various studios, groups, schools, faculties for teaching and introducing students to the knowledge of world culture, painting, graphics, sculpture, folk crafts, etc.;
• creation of various training groups and methods of special education for children with developmental disabilities;
• creation of groups for the adaptation of children to the conditions of school life (preparation for school);
• creation of various sections, health promotion groups (gymnastics, aerobics, rhythmics, skating, skiing, various games, general physical training, etc.).

The above list is not exhaustive, it can be expanded both by specifying each item named in the list, and by adding to it other types of paid additional educational services that are in demand and are not financed from the budget. In practice, such a type of service as "special learning conditions" (organization of paid classes, splitting into groups of smaller occupancy with comfortable conditions training and maintenance of students / pupils, individual home education for children with a weakened state of health, services of a speech therapist and psychologist in excess of those funded from the budget, conducting exams in the external school system, etc.).

Paid additional educational services provided by state and municipal educational institutions at the expense of funds received directly from consumers of these services (students, their parents or representatives) do not apply to entrepreneurial activity in accordance with paragraph 2 of Art. 45 of the Law of the Russian Federation "On Education", since there is no sign of complete independence of the implementation of activities, provided for by Art. 2 of the Civil Code of the Russian Federation (the conditions for conducting this activity and the direction of spending funds are strictly regulated by the norms of the Law of the Russian Federation "On Education" and the acts of the Ministry of Education of the Russian Federation and other educational authorities adopted in its development). Under these circumstances, the funds received from consumers of paid additional educational services may be considered as targeted income, and not as income from entrepreneurial activity.

1.2. Implementation of paid educational services by non-state educational institutions

In legislative and regulatory acts, educational services of non-state educational institutions are not divided into basic and additional, since all educational activities of such institutions, as a rule, are conducted on a paid basis. However, the most organizationally advanced non-state educational institutions prefer to divide the services provided into two groups in their constituent documents, other internal local acts, contracts with consumers:

1. basic educational services provided as part of the implementation of basic educational programs and (or) ensuring the maintenance and education of students / pupils during their stay in an educational institution in accordance with state standards (according to the profile of the institution);
2. additional educational services provided to individual consumers at their request in the required volumes in excess of the basic services for a fee or as part of a complex of educational services being implemented. This division is very financially sound, as it allows for a fixed standard tuition fee and an additional fee that varies in size for individual customers.

The educational activities of a non-state educational institution, carried out at the expense of financing of the founders and other receipts from persons not directly related to the consumers of educational services (sponsors, donors, philanthropists, etc.), are not entrepreneurial for the same reasons as in state educational institutions. institutions. The above receipts with the targeted direction of spending funds (including funding from the budget of non-state educational institutions with state accreditation) should be taken into account on the credit account. 96 "Targeted funding and income".

As regards the paid educational activities such an institution (implementation of paid educational services to consumers associated with the institution by contractual relations and paying for these services), then in accordance with paragraph 2 of Art. 46 of the Law of the Russian Federation "On Education" such paid activity is not considered as entrepreneurial if the income received from it is fully used to reimburse the costs of providing the educational process, its development and improvement in this educational institution. In addition, in accordance with paragraph 3 of Art. 47 of the Law of the Russian Federation "On Education" activities for the implementation of products, works, services (including educational ones) provided for by the charter of an educational institution are classified as entrepreneurial only in terms of non-reinvested income.

Thus, if the income from paid educational activities, reflected in the loan account. 46, amounted to 100 units for the reporting period (month, quarter, half year, 9 months, year), and the costs of providing and developing the educational process, accounted for in the debit of accounts 20, 88, in the aggregate - 90 units, then such activities are 90% will not apply to entrepreneurial, but 10% - will. The consequence of such a development of events will be the entry of a non-state educational institution into the number of payers of the relevant taxes.

1.3. Implementation of paid educational services by other organizations

For all other organizations (except for educational institutions), paid educational services under any circumstances will be considered as an entrepreneurial activity.

Non-profit educational organizations as opposed to commercial organizations have the opportunity to receive targeted funds from sponsors, donors, founders or members of these organizations, including for the conduct of educational activities and the provision of services to third-party consumers, which are not considered as income from entrepreneurial activities. A prerequisite is the absence of counter provision of educational services to persons who transferred these funds. In practice, the implementation of paid educational services by non-profit organizations is sometimes disguised as membership fees from persons who are actually consumers of these services, but such circumstances are always revealed during a tax audit.

1.4. Implementation of related services

According to paragraph 1 of Art. 12 of the Russian Federation "On Education", the educational process means not only the implementation of one or more educational programs, but also the provision of maintenance and education of students / pupils. In addition to providing educational services as part of the implementation of basic and additional educational programs, educational organizations often need to provide related services to consumers. These services include, in particular:

• information and consulting services;
• security services;
• paid wardrobe;
• nutrition;
• provision of accommodation;
• organization of additional medical care;
• excursion and cultural services;
• physical education and development services;
• organization of leisure activities, including theatrical and entertainment, sports, cultural, educational, entertainment and festive events, etc.

Of the related services, it is important to single out services in the field of education related to the training and production and (or) educational process, equated for tax purposes with educational services. Services in the field of education, equated to educational services, should be understood as services provided to a limited circle of consumers - only students and other participants in the educational process in this educational institution. The assignment of such related services in the field of education to entrepreneurial or non-entrepreneurial activities by state and municipal educational institutions, non-state educational institutions is carried out in the manner prescribed for additional educational services.

The same related services provided to third-party consumers cannot be recognized as services in the field of education, since the provision of services is not limited to the circle of persons participating in the educational process in this educational institution. However, educational institutions that have an entry about such services in the charter and reinvest income in the educational process of this institution may not consider this part of the activity as entrepreneurial (clause 3, article 47 of the Law of the Russian Federation "On Education").

It should be noted that certain types of activities from the above related services for all organizations, without exception, are subject to special tax benefits provided by the current legislation in addition to benefits for the education sector (regardless of whether they are provided to students or outsiders). Such related services, in particular, include: provision of food in terms of the sale of products of a canteen institution financed from the budget; provision of accommodation in terms of the implementation of hostel services; holding theatrical and entertainment, sports, cultural, educational, entertainment events, etc.

1.5. Implementation of related works

The related work most often performed by educational organizations, first of all, should include research and development work (R&D), including those performed by educational institutions on the basis of business contracts. Educational institutions have the opportunity not to consider this activity as entrepreneurial in terms of the income received, reinvested in the educational process of this institution, if the performance of such work is provided for by the charter of the institution (clause 3, article 47 of the Law of the Russian Federation "On Education"). All other organizations classify this activity as entrepreneurial.

1.6. Sales of products, works, services within the framework of educational and production activities

Under the educational and productive activities of an educational organization is understood the production and sale of products (works, services) with the participation of students. Training and production activities can be planned and additional, carried out through:

• educational and productive workshops;
• educational enterprises, including training shops, printing houses, cafes, ateliers, hairdressers, etc.

The status of the educational enterprise, its functions and the purpose of its creation (passing by the student of industrial practice, development of production skills or making a profit) must be reflected in the constituent documents of the legal entity. Educational institutions that have educational enterprises of a non-entrepreneurial nature in accordance with the charter and reinvest income from educational and production activities in the educational process of this institution, in this part do not classify such activities as entrepreneurial, guided by paragraph 3 of Art. 47 of the Law of the Russian Federation "On Education". Legal entities of other organizational and legal forms, including non-profit organizations, consider the income of educational enterprises as income from entrepreneurial activity.

1.7. Publishing and printing activities of educational organizations

The publishing and printing activities of educational organizations are understood as the production and (or) sale of book products related to the educational process, to students and third-party consumers.

The allocation of this type of activity is due to the presence in the current legislation of special tax benefits for persons selling book products related to education, science and culture.

Educational institutions that carry out statutory publishing and printing activities and reinvest income from such activities in the educational process, in this part, do not consider this activity as entrepreneurial (clause 3, article 47 of the Law of the Russian Federation "On Education").

1.8. Trade in purchased goods (except trade in educational stores)

This activity, which is initially entrepreneurial for all (clause 2, article 47 of the Law of the Russian Federation "On Education"), will not be considered as such only by educational institutions that have indicated the possibility of conducting it in the charter and reinvest income in the educational process in accordance with clause 3 Art. 47 of the above law.

1.9. Realization of intermediary services

The most characteristic type of intermediary services provided by educational organizations are services for the organization and preparation of seminars conducted by other persons (including abroad).

Provision of intermediary services in accordance with paragraph 2 of Art. 47 of the Law of the Russian Federation "On Education", as well as trade in purchased goods, is initially considered as an entrepreneurial activity. Educational institutions have the opportunity not to classify this activity as entrepreneurial in terms of income reinvested in the educational process (clause 3, article 47 of the Law of the Russian Federation "On Education").

2. Sale of fixed assets and other property

The sale (sale) of fixed assets and other property or other sale is the second main component in calculating the financial result (gross profit) of a legal entity, in addition to the main sale. Other property is understood as intangible assets, low-value and wearing items, other inventories on the balance sheet of the organization, not originally intended for sale, but sold as a result of uselessness in the main activity.

According to paragraph 2 of Art. 47 of the Law of the Russian Federation "On Education" this activity refers to entrepreneurial. Apply paragraph 3 of Art. 47 of the above law on not classifying such activities as entrepreneurial in the event that an educational institution reinvests income in the educational process, it is not possible, since this rule applies to the main sale (sale of products, works, services provided for by the charter).

3. Non-operating income

The third main component in calculating the financial result (gross profit) of a legal entity is non-operating income. The list of non-operating income is provided for in paragraph 6 of Art. 2 of the Law of the Russian Federation "On non-profit tax of enterprises and organizations", clause 14 of the Regulations on the composition of costs for the production and sale of products (works, services) included in the cost of products (works, services), and on the procedure for forming financial results, taken into account when taxing profits, approved by Decree of the Government of the Russian Federation of 08/05/1992 No. 552 as amended by subsequent changes and additions, clause 14 of the Instruction of the State Tax Service of the Russian Federation of 08.20.1998 No. 48 "On the procedure for calculating and paying income tax in the budget budgetary organizations (institutions) and reporting to the tax authorities" and a number of others normative documents. We list the main types of non-operating income received by educational organizations.

3.1. Lease (sublease) of fixed assets and other property

According to paragraph 2 of Art. 47 of the Law of the Russian Federation "On Education" leasing of fixed assets and property refers to entrepreneurial activity without any exceptions or exemptions. Paragraph 3 of Art. 47 of the above Law is not applicable, since this paragraph refers to activities for the sale of products, works, services provided for by the charter and not non-operating income.

3.2. Investment and financial activities of educational organizations

Income from investment and financial activities educational organizations also refer to non-operating income. This type of activity is:

• equity participation in the activities of other institutions and organizations (including educational ones);
• acquisition of shares, bonds, other securities and receipt of income (dividends, interest) on them;
• investing money in deposit accounts, etc.

Paragraph 2 of Art. 47 of the Law of the Russian Federation "On Education" classifies these types of activities as entrepreneurial. The norms of the legislation do not provide for the possibility of excluding such income from the sphere of entrepreneurial activity. Thus, they are not entrepreneurial activities:

• educational services provided by non-profit educational organizations, including educational institutions of all forms of ownership, at the expense of budget revenues and from persons who are in no way connected with the consumers of these services (from founders, sponsors, philanthropists, donors, members non-profit organization etc.);
• additional paid educational services provided by state and municipal educational institutions.

Are entrepreneurial activities at the time of implementation, but do not subsequently relate to such in terms of income reinvested in the educational process of this institution, provided for by the charter:

• paid educational services provided by non-state educational institutions;
• related services provided by state, municipal and non-state educational institutions;
• related work performed by state, municipal and non-state educational institutions;
• products, works, services sold by state, municipal and non-state educational institutions within the framework of educational and productive activities;
• sale of publishing and printing products by state, municipal and non-state educational institutions;
• trade in purchased goods carried out by state, municipal and non-state educational institutions;
• intermediary services provided by state, municipal and non-state educational institutions;
• other products, works, services provided for by the charter of the educational institution.

Are entrepreneurial activities:

• types of activities named in the previous paragraph of this section and carried out by all other educational organizations, except for educational institutions;
• sale of fixed assets and other property by all educational organizations, including educational institutions;
• leasing of fixed assets and other property by all educational organizations, including educational institutions;
• investment and financial activities of all educational organizations, including educational institutions;
• other types of non-operating income of all educational organizations, including educational institutions.

Referring to this list, any educational organization will be able to decide whether the newly introduced line of activity will relate to the entrepreneurial sphere, the duties of the taxpayer arise and for what types of taxes, how to formalize the receipt of extrabudgetary funds. It turns out that at present the main type of entrepreneurial activity, which is widespread among state higher educational institutions, is the leasing of occupied premises.

Assignment of property to the institution on the right of operational management is compensated by the obligation of the owner to fully or partially finance it. Financing of federal state educational institutions is carried out on the basis of federal standards for financing state educational institutions (clause 2, article 41 of the Law on Education). This financing is carried out at the expense of the federal budget by the federal state educational authority or the federal executive authorities in charge of these institutions (clause 1, article 28 of the Law on Higher and Postgraduate vocational education).

In conditions of underfunding, the institution faces a dilemma: either to earn money on your own through the implementation of entrepreneurial activities and develop the material and technical base, or exist mainly at the expense of budgetary funds and drag out a miserable existence. Most universities choose the first path. The funds received by universities from the implementation of entrepreneurial activities are very significant. In particular, the functioning of state universities, which are under the jurisdiction of the Ministry of Education and Science of Russia, is provided at the expense of funds from entrepreneurial activity at the level of 40% 1 . Individual state universities have 60-70% of the total amount of financial resources from extrabudgetary activities 2 . Due to the attracted additional financial resources, universities have the opportunity to adequately fulfill their educational and scientific mission in society, strengthen the material and technical base, and retain professional personnel.

The right to conduct business activities by non-profit organizations, which include institutions, is legalized and provided, first of all, general rules civil law - para. 2 p. 3 art. 50, art. 298 of the Civil Code of the Russian Federation 1, art. 24 of the Law on non-profit organizations, as well as the norms of educational legislation - Art. 46–47 of the Law on Education, clause 100 of the Model Regulation on an educational institution of higher professional education of the Russian Federation. This right was first provided for by the Fundamentals of Civil Legislation of the USSR and the Republics (1991) and the Law of the RSFSR "On Property in the RSFSR" 2 . In paragraph 3 of Art. 18 of the Fundamentals, it was enshrined that non-profit organizations can engage in entrepreneurial activities only to the extent that it is necessary for their statutory purposes. The Law on Property, in turn, provided that institutions engaged in entrepreneurial activities with the consent of the owner, in cases provided for by the legislation of the RSFSR, acquire the right to independently dispose of income from such activities and property acquired at the expense of these incomes (paragraph 4 of Art. 5). Similar rules are contained in the current legislation. At the same time, the legislator limited the right of non-profit organizations to carry out entrepreneurial activities with two conditions: in accordance with paragraph 2 of Art. 50 of the Civil Code of the Russian Federation, they can carry out entrepreneurial activities only insofar as it serves to achieve the goals for which they were created, and corresponding to these goals. Thus, the entrepreneurial activity of a non-profit organization must meet the following criteria: 1) serve the purposes for which it was created; 2) meet these goals. In Art. 2 of the Law on non-profit organizations lists the following goals of non-profit organizations: the achievement of social, charitable, cultural, educational, scientific, managerial, etc. goals of activity; public health, development physical culture and sports, protection of rights, etc.

The first feature that is presented to the entrepreneurial activity of non-profit organizations does not raise questions and lies in the fact that this activity should contribute to the main goal of the activity. With regard to the educational activities of educational institutions, this can manifest itself in the direction of the funds received to the fixed and working capital of the institution, to pay wages, business trips, etc. A similar point of view is shared by other authors 1 .

As for the second requirement imposed by law on the entrepreneurial activity of a non-profit organization - its compliance with the goals for which it was created, then problems of a lexical nature arise here. Correspond - to include a correspondence with someone; correspondence - a relationship between something, expressing consistency, equality in some respect 2. Consistency is revealed through the concept of "coordinated" - one in which unity, agreement has been achieved 3 ; equality - complete similarity, similarity 1 . If we proceed from the literal interpretation of the word "compliance", then the analyzed feature should mean that the entrepreneurial activity of a non-profit organization must be one with its goals of activity and similar to them 2 . In view of the foregoing, regarding the entrepreneurial activity of an educational institution, it follows that this activity should be similar to the main goal of its activity. The latter, according to Art. 12 of the Law on Education, is the implementation of the educational process in the form of the implementation of educational programs. What can correspond to this activity, be in equality with it? In our opinion, only educational activities carried out in excess of budget funding, i.e. on a reimbursable basis. But in no way can it be attributed to it, taking into account this criterion, those types of entrepreneurial activities that are provided for by the Law on Education (sale of fixed and working capital, provision of intermediary services, etc.).

Concerning the second criterion applied to entrepreneurial activity of non-commercial organizations, other opinions have been expressed. For example, G.A. Kudryavtseva believes that the entrepreneurial activity of non-profit organizations should be limited only to the scope of the statutory goals of these organizations and cannot go beyond this scope. To clarify her thoughts, she gives an example: if a sports society opens a sports equipment repair shop, then such entrepreneurial activity will correspond to the statutory goals of this sports public organization and, therefore, will become completely legal 3 .

O.P. Kashkovsky, in turn, believes that the entrepreneurial activity of a non-profit organization will correspond to the goals of its creation, if it is a socially useful (main) activity or an activity that provides it. The latter is: activities, the results of which, due to their qualities, are intended for use only in socially useful (main) activities (for example, the production of sports simulators); activities that promote socially useful (main) activities, making them more efficient and accessible (for example, advertising the socially useful activities of a non-profit organization); activities that meet the needs arising from the implementation of socially useful (main) activities (for example, the preparation and sale of food by the theater buffet) 1 .

It seems to us that the given understanding by the indicated authors of the second condition for the entrepreneurial activity of non-profit organizations is erroneous, since the authors proceeded not from the meaning of the word “correspond”, but from the principle of expediency.

Unlike the Civil Code of the Russian Federation, Art. 24 of the Law on non-profit organizations makes only one requirement for the entrepreneurial activity of non-profit organizations - it must serve the achievement of the goals for which the non-profit organization was created. The second criterion - "compliance with these goals" is absent here. This law lists the types of activities that, in the opinion of the legislator, can serve to achieve the goals of the organization for which it was created: 1) profit-making production of goods and services that meet the goals of creating a non-profit organization; 2) acquisition and sale of securities, property and non-property rights; 3) participation in economic companies; 4) participation in limited partnerships as a contributor. As you can see, the types of entrepreneurial activity listed in the list cannot “correspond” to the main goal of the activity of any non-profit organization.

There is also no unity in the norms of laws devoted to certain types of non-profit organizations on the issue of requirements for entrepreneurial activity. Yes, Art. 37 of the Law "On public associations» 1 , art. 12 of the Law "On charitable activities and charitable organizations" 2 and paragraph 1 of Art. 117 of the Civil Code of the Russian Federation impose two requirements on the entrepreneurial activity of public organizations - it must serve the achievement of the statutory goals (in the Law on Charitable Activities - it must serve the achievement of the goals for which the association was created); meet these goals. The Law “On Freedom of Conscience and on Religious Associations” 3 generally omits this issue, indicating only that religious organizations have the right to carry out entrepreneurial activities and create own enterprises in the manner established by the legislation of the Russian Federation (Article 23). Under the legislation, in this case, Art. 117 of the Civil Code of the Russian Federation (“Public and religious organizations”). As noted above, this article sets out two requirements for the entrepreneurial activities of public and religious organizations. The Law “On consumer cooperation (consumer societies, their unions) in the Russian Federation” (Article 5) imposes one requirement on the entrepreneurial activity of a society - it must serve the achievement of the goals for which it was created (Article 116 of the Civil Code of the Russian Federation is silent about the criteria for to the entrepreneurial activity of a consumer cooperative). The Law on Education (Art. 47) and Fundamentals of Russian Legislation on Culture 4 (Art. 47) also do not impose any requirements on the entrepreneurial activities of educational institutions and cultural organizations. Accordingly, they provide that an educational institution, state and municipal cultural organizations have the right to conduct entrepreneurial activities provided for by their charter.

In the civil legislation of the neighboring countries, the issue of the right of non-profit organizations to engage in entrepreneurial activities is also not resolved by the most the best way. So, for example, the Civil Code of the Republic of Kazakhstan establishes one requirement for the entrepreneurial activities of non-profit organizations - compliance with its statutory goals (clause 2, article 34) 1 ; and in the Civil Code of the Republic of Belarus there are three requirements: 1) it must be necessary for the statutory purposes for which the organization was created; 2) meet these goals; 3) correspond to the subject of activity of non-profit organizations (clause 3 of article 46) 2 .

If we take into account Art. 24 of the Law on Non-Commercial Organizations, it follows that the legislator allows a non-commercial organization to carry out entrepreneurial activities that are non-identical in relation to the main activity of the organization. If we proceed from the literal meaning of par. 2 p. 3 art. 50 of the Civil Code of the Russian Federation, it turns out that in most cases entrepreneurial activities carried out by non-profit organizations are illegal. Thus, there is an internal conflict between the idea of ​​the legislator and the norm of the law. This circumstance requires the presentation of par. 2 p. 3 art. 50 of the Civil Code of the Russian Federation in the new edition: "Non-profit organizations can carry out entrepreneurial activities only insofar as this serves to achieve the goals for which they were created." This rule will allow non-profit organizations to engage in any type of activity, but on the condition that this activity itself, the income received from its implementation, will be directed to achieve the goals of the organization. A barrier against excessive enthusiasm for activities that are unusual for the essence of a non-profit organization should be fixed in its constituent documents (clause 2, article 52 of the Civil Code of the Russian Federation). As additional guarantees of suppression of "departure" from the main activity and replacement of the main goal of the activity of non-profit organizations with a different goal - making a profit, other methods can be proposed. One of these ways can be a list of permitted or prohibited types of entrepreneurial activity, enshrined in the law, that may (or may not) be carried out by non-profit organizations. An analysis of laws dealing with certain types of non-profit organizations shows that only certain laws provide for such a list 1 . There is no such list in the Civil Code of the Russian Federation, but the relevant restrictions on the right to engage in certain types of entrepreneurial activity are contained in the articles on contractual obligations. For example, non-profit organizations are not entitled to act as a financial agent in financing agreements against the assignment of a monetary claim (Article 825), cannot be a party to a commercial concession agreement (Article 1027), cannot act as a commercial representative (Article 184) and a trustee under a property trust management agreement (Article 1015), etc. In addition, according to Art. 426 of the Civil Code of the Russian Federation, non-profit organizations cannot be a party to a public contract that sells goods, performs work or provides services (disagreement with this rule will be discussed in the next chapter of the work).

As a criterion for the scope of the right of an institution to carry out entrepreneurial activities, one could consider the amount of underfunding on the part of the founder. With regard to the educational activities of the university, a specific criterion was the permissible percentage of enrollment of students on a contract basis, fixed at the level of law, in the areas of training "jurisprudence", "economics", "management", "public and municipal government". The Law of 20.07.2004 removed this provision from the Law on Education.

Regarding the criteria for the permissible scope of entrepreneurial activity of non-profit organizations, other proposals have been made in the literature. In particular, - to determine it on the basis of a complex criterion, the components of which are: the number of different activities of the organization, their specificity and intensity; time costs for the implementation of certain types of activities; the ratio between income and expenses for entrepreneurial and non-entrepreneurial activities; representation in governing bodies; composition of participants (members) 1 .

Some authors believe that the institution, due to its organizational and legal form, is not able to carry out entrepreneurial activities 2 . As a rule, this conclusion is explained by the fact that it lacks the main criteria for entrepreneurial activity, established by Art. 2 of the Civil Code of the Russian Federation: independence, its implementation at your own risk and at your own expense 3 . Such a statement, in our opinion, can only be the result of an inadequate perception of the signs of entrepreneurial activity. To clarify this issue, let us dwell in more detail on the essence of these features.

In the Civil Code of the Russian Federation, entrepreneurial activity is understood as an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (Article 2). The following constitutive features of entrepreneurial activity follow from the above definition: 1) the independent nature of this activity; 2) carrying it out at your own risk; 3) the main purpose of this activity is to make a profit; 4) systematic profit making; 5) these are activities related to the use of property, the sale of goods, the performance of work or the provision of services; 6) registration of a person carrying out entrepreneurial activity as an entrepreneur in accordance with the procedure established by law.

1. Independent nature of entrepreneurial activity. This feature is revealed through the substantive and economic aspects 1 .

The material and legal aspect of this feature implies that the subject of entrepreneurial activity has legal personality, i.e. has the right to independently, independently of other persons, decide on the implementation of entrepreneurial activities, on the organizational and legal form of entrepreneurship. Legal entities have the right to make this decision from the moment of state registration (clause 3, article 49, clause 2, article 51 of the Civil Code of the Russian Federation), since it is from that moment that they are endowed with legal capacity.

Entrepreneurial legal personality of individuals, as follows from the analysis of Articles 21-28 of the Civil Code of the Russian Federation, fully arises when they reach 18 years of age. From this rule The law provides for a number of exceptions. In particular, according to paragraph 2 of Art. 26 of the Civil Code of the Russian Federation, minors, upon reaching 16 years of age, have the right to be members of cooperatives. Membership in a cooperative implies personal labor and property participation, in accordance with which the profit of the cooperative is distributed (Articles 108, 109 of the Civil Code of the Russian Federation). In addition, upon reaching the age of 16, under certain conditions, citizens can be emancipated (Article 27 of the Civil Code of the Russian Federation), and, therefore, from that moment they have full legal personality.

The economic aspect of the independence of a business entity assumes that the entrepreneur has a sufficient property base for doing business. The property assigned to a business entity is the basis of its economic activity. The volume of property independence of legal entities depends primarily on the type of property right on which property is assigned to them. The greatest opportunities for doing business are available to legal entities - owners and individual entrepreneurs; the smallest - for the subjects of the right of economic management and operational management.

The autonomy of entrepreneurs is not unlimited, its limits are significantly limited by civil, antimonopoly and other legislation.

2. Carrying out business activities at your own risk.

In civil law, "entrepreneurial risk" is a specific concept in relation to the category "risk". The definition of "risk" is used in legislation and in the scientific literature in relation to certain types of relations and areas professional activity. Within the framework of the objective category of risk, such types of risk are distinguished as official, industrial, scientific and technical, creative, medical, sports, journalistic, insurance, commercial, etc. 1 .

Most often, the category "risk" is used in civil law. Yu. Fogelson calculated that this category is used in the norms of the Civil Code of the Russian Federation 89 times, where the risk is correlated with losses, accidental loss or damage to property, accidental impossibility of performance, attribution of costs and losses, consequences (adverse, failure to present a claim, lack of information, death or damage to , failure to fulfill obligations), loss (death), shortage or damage, failure to receive expected income, liability, payments 1 .

In the field of civil law relations, the following judgments were made about risk. N.S. Malein at risk considered the possibility of adverse property consequences, and risk-bearing - the assumption of these adverse consequences that could occur due to random circumstances 2 . A similar opinion was expressed by A.A. Sobchak 3 . O.A. perceived this category somewhat more broadly. Krasavchikov, considering the risk from the objective side as a certain danger (possibility) of diminishing property or personal non-property benefits 4 .

The above understandings of risk are characterized by the fact that risk is considered as a circumstance excluding civil liability. At the same time, the party acting under conditions of risk is charged with incurring adverse property consequences.

Other meanings are put into the concept of risk, however, in the framework of our study, they are unacceptable 5 .

Most recently, the category of "risk" was enshrined in the Law "On Technical Regulation" 1 . Risk is understood as the probability of causing harm to the life or health of citizens, property of individuals or legal entities, state or municipal property, environment, life or health of animals and plants, taking into account the severity of this harm (Article 2). This definition is of a general nature and does not reflect the characteristics of individual types of risk and the consequences of risk.

For the first time, the concept of risk as a functional characteristic of entrepreneurship was put forward in the 15th century by the French economist of Scottish origin R. Cantillon. He considered the entrepreneur as a decision-maker and satisfying his interests in conditions of uncertainty. The entrepreneur's profits and losses are a consequence of the risk and uncertainty that accompany his decisions. According to Cantillon, an entrepreneur is any individual who has the foresight and desire to take risks, looking to the future, whose actions are characterized by both the hope of gaining profit and the willingness to lose 2.

Many authors worked on the problem of the concept and essence of entrepreneurial risk, each of them showed his own vision of this phenomenon 3 . However, in any interpretation, such an element as the onset of adverse property consequences in the form of incurring costs and losses is embedded in entrepreneurial risk.

It seems to us that entrepreneurial risk is a complex category, including, among other things, civil liability without fault, other adverse consequences of technological, innovative, informational, etc. character. Thus, under entrepreneurial risk should be understood as bearing adverse consequences (property in the form of losses incurred in the course of doing business, technological, innovative, informational, etc.), as well as independent property innocent liability (the only basis for exemption from liability is the presence of force majeure, unless otherwise provided by law or an agreement (clause 3, article 401 of the Civil Code of the Russian Federation)).

The legal definition of entrepreneurial risk in the Civil Code of the Russian Federation is given only in relation to an insurance contract. It is understood as “the risk of losses from entrepreneurial activities due to a breach of their obligations by the counterparties of the entrepreneur or changes in the conditions of this activity due to circumstances beyond the control of the entrepreneur, including the risk of not receiving the expected income” (paragraph 2 of article 929). This definition, based on our understanding of entrepreneurial risk, does not reflect all the specifics of the phenomenon under study. Firstly, the risk of losses from entrepreneurial activity due to a violation of their obligations by the counterparties of the entrepreneur can be localized by holding them accountable; secondly, in this definition there are no other elements of entrepreneurial risk: incurring blameless responsibility, innovative, technological, informational and other risks.

Entrepreneurial risk in the legal literature is subject to a detailed classification on a variety of grounds: a source of danger; type of activity or type of entrepreneur; the scope of entrepreneurial risk; risk activity over time; legal basis for the risk; degree of entrepreneurial risk, etc. 1

3. The main goal of entrepreneurial activity is to make a profit.

In civil law, along with the concept of "profit", the concept of "income" is used. We are talking, in particular, about paragraph 2 of Art. 298 of the Civil Code of the Russian Federation. The Law on Education, in relation to our question, also deals with income (see paragraph 2 of article 45, paragraph 2 of article 46, paragraph 1 of article 47). Profit, income - specific terms of tax legislation, since it is here that the fundamental basis and purpose of these categories is laid - the payment of tax. In Art. 11 of the Tax Code of the Russian Federation, it is established that the institutions, concepts and terms of civil, family and other branches of the legislation of the Russian Federation used in this code are applied in the sense in which they are used in these branches of legislation, unless otherwise provided by this code, and the concepts of "taxpayer ”, “object of taxation”, “tax base”, “tax period” and other specific concepts and terms of the legislation on taxes and fees are used in the meanings determined in the relevant articles of this code. In accordance with Art. 247 of the Tax Code of the Russian Federation, income is recognized (for Russian organizations) as income received, reduced by the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation. Income, in turn, is the difference between the benefits received and the expenses incurred (Articles 210, 247 and 277 of the Tax Code of the Russian Federation).

Making a profit is the goal of entrepreneurial activity, not an obligatory result. Lack of profit cannot serve as a basis for the conclusion that such activity is not entrepreneurial. Failure to receive profit as a result of this activity is the result of entrepreneurial risk. In addition, there are exceptions to the general rule on making a profit as the goal of entrepreneurial activity, especially in the field of state and municipal entrepreneurship. For example, an enterprise financed from the state budget produces products necessary for the defense of the country, which may be, and most often is unprofitable, but is necessary for society; the urban transport enterprise satisfies the public needs for the transportation of passengers, although in some cases such enterprises are unprofitable and operate on subsidies 1 . As O.V. Tishanskaya, in developed countries, the policy of the state is to encourage non-profit entrepreneurship in the areas of ecology, health, culture, and social security 2 . This remark allows us to conclude that income (profit) in relation to the concept of entrepreneurial activity should be understood as the amount of income without reducing them by the amount of expenses. Other authors have come to similar conclusions 3 .

The content of the feature under study is very significant for criminal law, since the availability of income is one of the conditions for criminal liability for illegal business(Article 171 of the Criminal Code of the Russian Federation). In the science of criminal law there is no consensus on this feature 4 . Judicial practice is ambiguous, which can be seen in the example of the decisions of the Plenum of the Supreme Court of the Russian Federation. Thus, in one resolution of the Plenum of the Supreme Court of the Russian Federation it is noted that in order to hold a person liable for tax evasion, it is necessary to establish a taxable amount (profit), which is calculated as the difference between income received and expenses 5 ; in another ruling it is explained that under the income in Art. 171 of the Criminal Code of the Russian Federation should be understood as proceeds from the sale of goods (works, services) for the period of illegal entrepreneurial activity without deduction of expenses incurred by the person associated with the implementation of illegal entrepreneurial activity 1 .

4. Systematic conduct of business activities.

In general, the criterion of "systematic" in civil law is not a new concept. It has been applied and is applied to absolutely different situations(See, for example, Article 111 of the Civil Code of the RSFSR of 1964, paragraph 2 of Article 61, Article 293 of the Civil Code of the Russian Federation, etc.). In addition, the concept of "systematic" is used in other branches of law 2 . However, at the legislative level, it does not have clearly defined criteria (landmarks). The legislative gap on the criterion of consistency gave rise to a number of judgments about this category. Some authors believe that this is both the amount of profit being made and the number of actions performed and aimed at this extraction (use of property, sale of goods, performance of work, provision of services). Both manifestations of the trait under consideration are not strictly related to each other, because both one-time and systematic profits can be the result of both systematic behavioral acts and a one-time action 3 . In the opinion of others, the criterion of systematic entrepreneurial activity should be clarified by the size of the income of this activity: it should be of a significant nature and be measured in multiples of the minimum wage; systematic, but insignificant income should not be recognized as entrepreneurial, otherwise it would mean the neglect of common sense and economic expediency 1 . Some authors point to such a sign of systematic profit-making as the share of income from certain activities in the income structure of a given person, which should not be less than 10% of the income of a legal entity 2 ; "materiality" of profit, making a profit a certain number of times over a certain period of time, etc. 3

In our opinion, the criterion of “systematicity” is essential only in relation to the entrepreneurial activity of an individual entrepreneur. If this sign is removed from the definition of entrepreneurial activity, then absolutely nothing changes in relation to the activities of a legal entity, since for tax purposes it does not matter whether an operation (transaction) was performed once or the activity was carried out systematically. In any case, the organization is obliged to pay income tax.

The consistency applied to individuals, in our opinion, should be determined not depending on the number of actions taken to generate income, but on the amount of income received. In this case, actions in which there is no element of resale should not be taken into account. The amount of income for the purpose of classifying the activity of a citizen as entrepreneurial can be determined as a multiple of the minimum wage. For example, it could be 1000 minimum wages. If an individual performs different types activities, the total income should be summed up.

In the legal literature, the criterion of "consistency" is correlated with such a quality of entrepreneurial activity as professionalism 1 . Consonant with the criterion of "professionalism" in pre-revolutionary commercial law, the criterion of "fishery" was used. Fishing was understood as an activity aimed at acquiring material resources through constant employment. This activity was designed for an indefinite number of acts that constitute the source of income. Random, albeit repeated, performance of actions having contact with trade was not enough to recognize the presence of fishing 2 . In all likelihood, guided by this theory, some authors began to replace the “systematic” criterion with the “permanent” criterion (read “fishing”) 3 .

The term "permanent", as well as "systematic", is used in civil law. So, in paragraph 1 of Art. 184 of the Civil Code of the Russian Federation stipulates that a commercial representative carries out entrepreneurship in the field of entrepreneurial activity independently and constantly. Thus, one could assume that, in relation to entrepreneurial activity, the categories “systematic” and “permanent” are identical. It is this point of view that is held, for example, by N.I. Klein 4 . To understand the meaning of this category, let's turn to the dictionary of the Russian language, in which one of the meanings of the word "systematic" is - constantly repeating, not stopping 5 . In turn, the term "permanent" means - designed for a long time, not temporary 1 . The category "professional" means - related to any profession, associated with a profession, doing something as a profession; the profession, in turn, is defined as the main occupation, labor activity 2 . Thus, based on the meaning of these words, it follows that the criteria "systematic" and "permanent" are of the same type, in contrast to the criterion "professional activity".

5. Entrepreneurial activity is an activity related to the use of property, the sale of goods, the performance of work or the provision of services.

Enshrined in Art. 2 of the Civil Code of the Russian Federation, the list of ways of doing business is conditional, since in Art. 34 of the Constitution of the Russian Federation provides for the possibility of using any abilities to carry out entrepreneurial activities that are not prohibited by law. In this regard, it seems that this feature should be excluded from the definition of entrepreneurial activity.

6. Registration as an entrepreneur in the manner prescribed by law.

State registration of legal entities and individual entrepreneurs is carried out in accordance with the Law “On State Registration of Legal Entities and Individual Entrepreneurs” 3 . This registration is clearly public in nature 4 .

State registration as a sign of entrepreneurial activity matters only in relation to individuals - individual entrepreneurs. It testifies to the emergence of a new subject of precisely entrepreneurial legal relations (perhaps, this person has already acted as a subject of non-entrepreneurial relations) and gives the right to engage in such activities to this person. The purpose of the state registration of legal entities is completely different: they are registered in tax authorities not as subjects of entrepreneurial activity, but as potential subjects of various legal relations (both entrepreneurial and non-entrepreneurial). Non-profit organizations are subject to state registration even if they do not engage in entrepreneurial activities. This is explained by the fact that the moment of its creation, and, consequently, the emergence of legal capacity, is associated with the state registration of a legal entity.

Along with the registration of a legal entity as a sign of entrepreneurial activity, the legal literature expressed the view that the entrepreneurial activity of a legal entity should be subject to special public registration 1 . We believe that this wish is meaningless and does not require comment.

In addition to the signs of entrepreneurial activity discussed above, the following are also distinguished in the legal literature: all actions of an entrepreneurial and organizational plan are carried out by a business entity on its own behalf; entrepreneurial activity is carried out on the basis of a license 2 ; entrepreneurial activity should be aimed at meeting social needs; the existence of property liability of the entrepreneur (for the results of economic activity and as liability for obligations), etc.

The first criterion of entrepreneurial activity mentioned above is borrowed from G.F. Shershenevich, who wrote that it does not matter whether the merchant conducts the business himself or entrusts it to a completely trusted one; it does not matter whether he owns the enterprise, because he can be its tenant - nevertheless, he will be the merchant, and not the owner; it does not matter at whose expense the trade is conducted, and if in reality another person was hiding behind the back of the merchant, as a figurehead, with a property interest in success, the merchant would still be the one on behalf of whom the business is being conducted 1 . However, the application of this provision, taking into account modern legislation, is not always acceptable. Under current legislation, in a number of cases, the entrepreneur will be the one who makes transactions and the one on whose behalf they are made (see, for example, chapters 52, 53 of the Civil Code of the Russian Federation, provided that the activities of the agent and trustee will meet the legal signs of entrepreneurial activity ). In this case, it is appropriate, in our opinion, to cite E. Sukhanov’s reasoning: “one should not proceed from any artificial dogmas, squeezing real life relationships into them, but it is worth doing just the opposite (as it has always been perfectly done in Roman private law) » 2 .

With regard to the second sign - the implementation of entrepreneurial activities on the basis of licensing, then, as we see it, licensing should be considered not as a sign of entrepreneurial activity, but as one of the requirements or conditions for such. Our point of view can be confirmed by the fact that the legislator classifies entrepreneurial activities without an appropriate license as voidable transactions (Article 173 of the Civil Code of the Russian Federation).

Satisfaction of social needs, as a sign of entrepreneurial activity, is defended by K.K. Lebedev. He notes that the main goal of entrepreneurial activity is to make a profit, but making a profit depends on the implementation of the results of the entrepreneur's activities, which depend on how they - the results - correspond to social needs 1.

We believe that this sign is far-fetched, since any activity (both entrepreneurial and non-entrepreneurial), directly or indirectly, as mentioned above, must satisfy social needs (with the exception of certain types of activity). Otherwise, it will be anti-social, for the implementation of which appropriate sanctions are subject to application.

Property liability, as a sign of entrepreneurial activity, is substantiated by V.V. Laptev. This responsibility is considered by him both as responsibility for the results of economic activity and as responsibility for obligations 2 . In our opinion, this sign does not bring anything new to the essence of entrepreneurial activity: the first component of property liability acts as an element of entrepreneurial risk; the second component is the result of improper fulfillment of obligations, both in business and in other areas of activity.

Based on the foregoing, it seems that the signs of entrepreneurial activity of legal entities and individuals are different. For legal entities, these include: 1) the independent nature of this activity; 2) carrying it out at your own risk; 3) the main purpose of this activity is to make a profit. Along with these signs, the signs of entrepreneurial activity of individuals should include the systematic receipt of profit, as well as state registration of a person as an individual entrepreneur.

The activities of an educational institution aimed at generating income fully meet the characteristics of entrepreneurship. First, this activity has an independent character. This is shown in the following. The law and the founder allow the institution, under certain conditions, to carry out entrepreneurial activities; in this case, it is not required to coordinate with the founder the issue of taking specific appropriate actions. So, for example, according to paragraph 2 of Art. 29 of the Law on Higher and Postgraduate Professional Education, the university independently resolves issues related to the conclusion of contracts, the definition of obligations and other conditions that do not contradict the legislation of the Russian Federation and the charter of this higher educational institution.

The institution has the necessary amount of property independence to carry out entrepreneurial activities: the founder assigns property to it on the basis of the right of operational management; in addition, funds and acquired property from activities permitted by the founder are also under the authority of the institution.

For its obligations, the institution bears independent property liability with the funds at its disposal (clause 2, article 120 of the Civil Code of the Russian Federation). In case of their insufficiency, the owner of the relevant property bears subsidiary liability for its obligations. In reality, as judicial practice testifies, the sequence of foreclosure on the property of an institution is different. For any obligations of the institution, the recovery, first of all, is levied on the funds received by it from the permitted entrepreneurial activity. Secondly, the recovery is levied on the property acquired at the expense of the above funds; in the third place - on the funds received from the founder. And only after that the founder is held liable.

The main purpose of the entrepreneurial activity of an institution, like a commercial legal entity, is to make a profit. However, the motivation for the implementation of this activity is completely different. In the conditions of underfunding, it faces the task of preserving the university and highly qualified scientific and pedagogical personnel, carrying out research work, updating and expanding the material and technical base, etc. The funds received from the implementation of entrepreneurial activities are primarily directed to the solution of these tasks. In this regard, the implementation of entrepreneurial activities by the university is a forced, but necessary measure for it. At the same time, the implementation of entrepreneurial activity by the university distracts it from the main goal - the provision of educational services, and to a certain extent affects the quality of education. In this regard, we believe that in the future, with the proper amount of state funding, the entrepreneurial activity of the university should be limited only to paid educational, innovative and related activities.

The Law on Education provides for additional signs of entrepreneurial activity of educational institutions. So, in accordance with paragraph 2 of Art. 46 of the Law on Education, paid educational activities of a non-state educational institution are not considered as entrepreneurial if the income received from it is fully used to reimburse the costs of providing the educational process (including wages), its development and improvement in this educational institution. The concept of "providing, developing and improving the educational process" includes a set of expenses that ensure the organization and implementation of educational and educational processes, material support for students / pupils and strengthening the material and technical base of an educational institution 1 .

An additional condition for classifying the educational activities of educational institutions as entrepreneurial activities has repeatedly been the subject of criticism 2 . As most researchers rightly point out, this criterion is very controversial and should be taken into account only in taxation in order to establish a preferential tax regime.

The norms of the Law on Education, which introduce the condition for classifying the educational activities of non-state educational institutions as entrepreneurial, are in conflict with par. 3 p. 1 art. 2 of the Civil Code of the Russian Federation, as well as par. 2 p. 3 art. 50 of the Civil Code of the Russian Federation (these norms do not provide for such an approach to the definition of entrepreneurial activities of non-profit organizations and are inherently imperative).

Unlike paid basic educational activities of non-state educational institutions, the nature of such activities of state educational institutions is not defined in the Law on Education. And in general, Section IV of this Law, dedicated to the economics of the education system, does not contain relevant provisions on this activity (clause 10 of Article 41 provides only the right to carry out this activity), and paid additional educational activities of state educational institutions are not linked to the direction of spending income. In our opinion, there is the following explanation for this: in the conditions of the treasury system, the funds of state educational institutions from the implementation of paid educational activities (main and additional) cannot but be reinvested in an educational institution, i.e. they cannot leave the system. Based on this and subject to the provisions of Art. 46 of the Law on Education, it can be assumed that the Law on Education does not classify this activity as entrepreneurial. As a result, the same type of activity carried out by the same-level entities, differing only in the composition of the founders and the source of funding, falls under a different regime of legal regulation. In the light of the Tax Code of the Russian Federation, this inconsistency in the norms of the Law on Education may not be of particular importance, since income from any paid educational activities provided by both state and non-state educational institutions do not fall into the list of income not taken into account when determining the tax base . However, providing paid educational services, both basic and additional, universities enter into civil law relations. And here the nature of the activity is already of paramount importance, since the legal regulation of these relations is directly related to the nature of the activity carried out (entrepreneurial or non-entrepreneurial).

The foregoing testifies to the obvious "shortcomings" of the norms of the Law on Education and the need to eliminate them. Regarding the nature of paid educational activities carried out by educational institutions, we note that it, like other types of activities performed by these entities on a reimbursable basis, is by its nature a type of entrepreneurship.

According to paragraph 5 of Art. 47 of the Law on Education, the founder or local self-government body has the right to suspend the entrepreneurial activities of the institution, if it is to the detriment of the educational activities provided for by the charter, until a court decision on this issue. However, there is no mechanism for implementing this procedure. Considering that the suspension of educational activities will have a negative impact on the educational process, and also that it will be very difficult for the body supervising the activities of an educational institution to determine whether or not entrepreneurial activity causes damage to the main activity, this issue, in our opinion, should be in the jurisdiction of the court, not the regulatory authorities.

In the legislation and legal literature regarding the university, the concept of "entrepreneurial activity" is opposed to the concept of "extrabudgetary activity". These categories are related to each other as species and genus. Extrabudgetary should be understood as any activity of the university that is not financed from the state budget. Such activities, in particular, include the training of students on a reimbursable basis, the organization of courses and seminars, the implementation of contractual research, the lease of property, the production of products (works, services) by structural units, activities financed by trustee and charitable contributions, donations and etc. Entrepreneurial is only that non-budgetary activity of the university, which meets the characteristics of entrepreneurship: associated with independence, initiative, risk.

In addition, in the economic and legal literature, along with entrepreneurial activity, economic and economic activities are also distinguished. Of the three named types of activity, only entrepreneurial activity has a legal definition. Its features have been discussed above. As for economic and economic activity, there are not even generally accepted doctrinal definitions for them. Revealing the essence of these types of activities has not only theoretical, but also practical value. For example, criminal law provides for liability for crimes in the field of economic activity (see Chapter 22 of the Criminal Code of the Russian Federation), administrative legislation provides for liability in the field of entrepreneurial activity, finance, taxes and fees, the securities market (see Chapters 14, 15 of the Code of Administrative Offenses of the Russian Federation ). From the analysis of Chapter 22 of the Criminal Code of the Russian Federation (as well as, in general, Section 8 of the Criminal Code of the Russian Federation “Crimes in the Sphere of Economics”) and the Code of Administrative Offenses of the Russian Federation, it follows that in the criminal and administrative legislation there is no elementary systematization of the types of crimes and offenses in economic sphere, which may have the most negative impact on the administration of justice 1 . As one of the explanations for this phenomenon, the fact that the concept of " economic activity».

Most often, economic activity is understood as the activity of property management, the creation of material values, their transportation, sale, provision of services, as well as the management of all this activity in the national economy 2 . V.F. Popondopulo, criticizing this approach to the definition of economic activity, excludes management activities from its number ( managerial activity). In addition, entrepreneurial and economic activity, in his opinion, are equivalent concepts 3 . A similar point of view is shared by other authors 4 .

According to another point of view, entrepreneurial activity is a kind of economic activity, i.e. economic activity is a broader concept than entrepreneurial activity. So, for example, V.V. Laptev believes that economic activity is an activity for the manufacture of products, the production of works, the provision of services. AT modern conditions she is for the most part takes the form of entrepreneurial activity, but there may be such types of economic activity that do not have the characteristics inherent in entrepreneurial activity. In particular, the economic activities of socio-cultural institutions, religious, public and other non-profit organizations may not be aimed at making a profit. Such activities are of an auxiliary nature and are aimed at contributing to the achievement of the statutory tasks of the relevant organizations 1 (V.S. Belykh 2 adheres to a similar point of view).

The conclusion about the relationship between the definitions of economic and entrepreneurial activity depends on a related concept - economic activity. In turn, the concepts of economic and economic activity are derived from the categories of "economy" and "economy". The economy is an economy, a set of means, objects, processes used by people to ensure life, meet needs by creating necessary for a person benefits, conditions and means of subsistence with the use of labor 3 . The economy is a set of natural and man-made means used by people to create, maintain, improve conditions and means of subsistence, life support 4 . From this definition it follows that the economy and the economy are almost identical categories, and economic activity is the activity of people to create, maintain, improve the conditions and means of their existence, life support. Thus, comparing the concepts of economy and economy, we can conclude that economic and economic activity are phenomena of the same order, identical. The economic changes taking place in society could not but affect the terminology: political economic categories are being replaced by market concepts. So, in our opinion, this is what happened with the concept of "economic activity", which was used in the pre-perestroika period. In market conditions, it is most appropriate to use market terminology, which includes economic activity 5 .

As for the correlation between economic (economic) and entrepreneurial activity, it should be concluded that the first concept is much broader than the second concept: they are related to each other as a genus and species.

ENTREPRENEURSHIP AT THE UNIVERSITY

V. SEMEUSOV

V. Semeusov, Head of the Department of the Irkutsk State Economic Academy, Doctor of Law, Professor.

A. Einstein noticed that everything in this world is changing rapidly, except for the consciousness and psychology of people. More recently, to the question "Can a university engage in trade or entrepreneurship?" The answer was categorical and sharply negative. They remembered that even Jesus Christ drove the merchants out of the temple. And the university, figuratively speaking, is a temple of science and knowledge. And this opinion was based on the law. But other times have come, other rules have appeared, and legal consciousness is conservative by inertia. It is known, of course, that a new Civil Code of the Russian Federation has been adopted, and according to this Code, higher educational institutions, being an institution, i.e. a special subject of law are recognized as non-profit organizations. The latter, unlike commercial organizations, can carry out entrepreneurial activities only in so far as it serves to achieve the goals for which they were created, and corresponding to these goals (clause 3, article 50 of the Civil Code).

The legal stereotype that universities have no right to engage in business has been shaken, but not destroyed, since restrictions have been placed on doing business. The criteria, however, are very abstract, and therefore difficult to distinguish in practice. This, in particular, can explain the fact that recently there have been frequent cases of bringing the heads of universities to criminal liability in connection with the transactions they concluded. But for the correct qualification, knowledge in the field of economic law is necessary, because the establishment of the objective side of each specific economic crime, corruption requires a thorough analysis and interpretation of economic legislation.

When disclosing economic (economic) crimes, investigators are increasingly appointing scientific economic-legal, civil law expertise. It is necessary, for example, in the criminal - legal assessment of transactions made by the head of the university in the course of doing business and caught the eye of law enforcement agencies.

How applicable here are the general civil - legal norms? Misunderstandings, and sometimes mistakes, begin with the fact that they try to solve incidents from the practice of economic, entrepreneurial activities of universities, referring to general laws, to the Civil Code of the Russian Federation. Meanwhile, the legislation in the field of higher education is called university legislation. It consists of federal laws on higher education, legal acts of the Ministry of Education, as well as laws and other regulations of the constituent entities of the Russian Federation. It follows that the legal status of an educational institution is determined by special legislation that combines elements of public and private law.

In accordance with the university legislation, an educational institution has the right to conduct entrepreneurial activities provided for by its charter. So, in accordance with Art. 47 of the Law "On Education", the entrepreneurial activities of an educational institution include: the sale and leasing of fixed assets and property of an educational institution; trade in purchased goods, equipment; provision of intermediary services; equity participation in the activities of other institutions (including educational ones) and organizations; acquisition of shares, bonds, other securities and receipt of income (dividends, interest) on them; conducting other income-generating works and services provided for by the charter.

Is the university entitled to provide in its charter for the engagement in such types of entrepreneurial activities that are not named in the law? In other words, is an institution, which undoubtedly is a university, entitled to engage in any other types of entrepreneurial activities that are not prohibited by law? Obviously not. And that's why. An educational institution has a special (statutory) legal capacity. This means that it has the right to engage only in those activities that are specified in its charter. In turn, only such types of business activities that are expressly permitted by law can be recorded in this document. So, when it comes to the foreign economic activity of an educational institution, they mention the legal provision: educational institutions have the right to establish direct relations with foreign enterprises, institutions and organizations (Article 57 of the Law "On Education"). It is interpreted in the sense that in this case it refers to the establishment of "connections" in the field of science, education and other areas of intellectual activity, where copyright, patent law and intellectual property law operate.

But to this it must be added that, according to Art. 58 of the Law "On Education" educational institutions have the right to carry out foreign economic activity and have foreign currency accounts in banking and other credit institutions in the manner prescribed by the legislation of the Russian Federation. Currency funds received by an educational institution from foreign economic activity belong to it by the right of ownership or come into its operational management and are not subject to withdrawal.
Lawyers believed that institutions financed by the owner could be participants in economic companies and investors in partnerships only with the permission of the owner. However, at present, such a permit is not required for an educational institution that has the right to participate in the authorized funds of partnerships (joint-stock companies) and other organizations only with its own property (clause 4, article 43 of the Law "On Education").

A co-founder and shareholder of banks has the right to be an institution (university) as a legal entity, whose interests are represented by its head. However, there are known cases of participation among the founders, in the board of directors, in the authorized capital of a commercial bank, personally by the leaders of the university using monetary or other funds of the institution and receiving personal income due to this, which is not transferred to the institution. Such "inventiveness" borders on a crime.

A state higher educational institution, with the consent of the Ministry of Education, leases property and receives income. Is it obliged to transfer part of the income to the ministry? Answering this question, it should be said that the legal provision in paragraph 5 of Art. 43 of the Law "On Education" is stated as follows: an educational institution has the right, with the consent of the owner, to use the financial resources assigned to it and other objects of property in its activities related to generating income, and in this case, the owner receives the right to a part of the income.

Meanwhile, the activities of an institution, like any other commercial organization, must be subject to the following principle: the one who founded this organization, endowing it with property and approving the charter, does not have the right to directly or indirectly participate in its income. In other words, the founder of a non-profit organization does not act in relation to it as an entrepreneur. In the Civil Code, the university is recognized as a non-profit organization. It would seem logical to consider that this principle of the functioning of a non-profit organization applies to the university, since it is such an organization. But according to Art. 48 of the Civil Code, legal entities in respect of which their founders do not have property rights include: public and religious organizations (associations); charitable and other foundations; associations of legal entities (associations and unions). As for educational institutions, their founders have the right of ownership and other real rights. This means that the owner has the right to claim a part of the income.

Another controversial issue. Does the university violate the Law when it creates legal entities under various brand names in its structure? The answer can be given in the negative. According to the Law "On Education", in its entrepreneurial activity, a university is equated to an enterprise and falls under the laws of the Russian Federation in the field of entrepreneurial activity. This means that the rules of the Civil Code of the Russian Federation, which regulate the activities of legal entities that are commercial organizations, are applied to such activities of educational institutions. The latter have the right to create other legal entities.

Thus, the institution itself has the right to create other legal entities, but only on the basis of separate, personified property received from income from entrepreneurial activity and having, as a result, a special legal regime. The founder or local self-government bodies have the right to suspend the entrepreneurial activity of the university, if it is to the detriment of educational activities provided for by the charter, until a court decision on this issue.

Budget institutions may provide paid services or engage in other income-generating activities. But it is allowed to conduct such activities when it helps to achieve the goals for which the institution was created. Moreover, in some cases, the law directly prohibits its conduct.

Legal basis for the activities of institutions

The concept of "institution" is contained in Article 120 of the Civil Code of the Russian Federation. This, which was created by the owner to perform managerial, socio-cultural or other functions of a non-commercial nature.

In turn, the Budget Code of the Russian Federation in Article 161 defines a budgetary institution as an organization that was created by state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation or local governments to perform managerial, socio-cultural, scientific and technical or other functions of a non-commercial nature. This activity is financed from the relevant budget ( off-budget fund) in terms of income and expenses.

From these definitions it can be seen that the main objectives of the activity budget institutions is the provision of public services. Institutions should not be created for profit - after all, they provide services free of charge or at approved rates. But these tariffs nevertheless form the revenue part of the budget.

The Civil Code of the Russian Federation admits that non-profit organizations can carry out entrepreneurial activities (Clause 3, Article 50 of the Civil Code of the Russian Federation). But this is possible to the extent that it helps to achieve the goals for which they were created. Entrepreneurial activity must correspond to the main goals of creating a non-profit organization. Therefore, such an activity can only be optional and not the main one.

Entrepreneurial Restrictions

Along with the opportunity to conduct entrepreneurial activity, in some cases, the legislation contains a direct ban on it.

For example, Decree of the President of the Russian Federation of March 9, 2004 No. 314, subparagraph “c” of paragraph 4, prohibits all federal supervision services from providing paid services.

This rule of law has been developed in other normative acts in relation to specific federal services. So, for example, the Federal Treasury is not entitled to provide paid services (clause 7 of the Regulations on the Federal Treasury).

A similar norm was established by Decree of the Government of the Russian Federation of July 26, 2006 No. 459 for the Federal Customs Service.

How to get a business permit

Some budgetary institutions are allowed to carry out income-generating activities. These are, for example, health and education institutions.

Entrepreneurial activity can be carried out by an institution, if this is specifically reflected in the constituent documents. In this case, the income from such activities and the property acquired at the expense of these incomes are placed at the independent disposal of the institution and are accounted for on a separate balance sheet. This rule is established by Article 298 of the Civil Code of the Russian Federation.

Consequently, a budgetary institution receives permission for income-generating activities from a higher organization (the owner of its property) and such permission must be enshrined in constituent documents. That is, the charter (regulations, etc.) must indicate the types of permitted activities.

Please note: in order to carry out certain types of activities, an institution must, in without fail obtain the appropriate license.

For example, Article 47 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 “On Education” defines such an opportunity for an educational institution, if it is provided for by its charter. This article also contains a limited list of permitted activities.

If a commercial activity will go to the detriment of statutory educational activities, then the founder or local government has the right to suspend it until a court decision on this issue.

How to open a personal account

In order to use the right granted by law to conduct income-generating activities, an institution must open a personal account with a territorial body of the Federal Treasury. It will separately take into account transactions for such activities (clause 2 of the order of the Ministry of Finance of Russia dated June 21, 2001 No. 46n).

A personal account is opened on the basis of a general permit.

To open personal account it is necessary to submit to the Federal Treasury the documents listed in paragraph 6 of the instruction, which was approved by order of the Ministry of Finance of Russia No. 46n:

Original permission to open a personal account;

Application for opening a personal account indicating that it is intended for accounting for funds received from entrepreneurial and other income-generating activities;

Signature sample card.

Estimate of income and expenses

Income from income-generating activities after payment of taxes and fees is fully taken into account in the estimate of income and expenses of a budgetary institution (clause 2, article 42 of the Budget Code of the Russian Federation).

The functions of approving estimates of income and expenses are assigned to the main managers of budgetary funds (clause 4, article 158 of the Budget Code of the Russian Federation). He also approves the estimates of income and expenses for extrabudgetary activities submitted by the institution. One copy of the estimate must be submitted to the Federal Treasury.

During the financial year, the institution, if necessary, has the right to make adjustments to the estimate of income and expenses. At the same time, an updated estimate is compiled, which is approved by the head of the budgetary institution and the main manager of budgetary funds (clause 6, article 158 of the Budget Code of the Russian Federation). An updated estimate is also submitted to the Treasury.

Taxation issues

Tax legislation does not establish special rules for setting up a budgetary institution. That is, all budgetary institutions, when they are created on the basis of Article 83 of the Tax Code of the Russian Federation, are subject to registration with the tax authorities at their location.

When registering, an institution is assigned a single taxpayer identification number for all types of taxes and fees (clause 7, article 84 of the Tax Code of the Russian Federation). Therefore, after obtaining a permit for entrepreneurial activity, an institution does not need to additionally register as a payer of income tax and VAT.

value added tax

The tax legislation does not link the obligation to pay VAT to the organizational and legal form of a legal entity and does not contain any special rules for this tax in relation to budgetary institutions. Therefore, they will be recognized as VAT payers on a general basis if they perform operations that are recognized as objects of taxation in Article 146 of the Tax Code of the Russian Federation.

If the amount of revenue of a budgetary institution for three consecutive calendar months does not exceed 2,000,000 rubles in aggregate, then the institution has the right to take advantage of the exemption from the performance of taxpayer obligations (Article 145 of the Tax Code of the Russian Federation).

In addition, a number of transactions are exempt from taxation. Their list is given in Article 149 of the Tax Code of the Russian Federation. But in accordance with paragraph 6 of this article, in order to apply the above benefits, an institution must have a license for the type of activity carried out, which is subject to mandatory licensing in accordance with the legislation of the Russian Federation.

Carrying out entrepreneurial activities, an institution can simultaneously perform both VAT-taxable and non-taxable transactions. In this case, it is necessary to keep separate records of such transactions.

income tax

Budgetary institutions that receive income from income-generating activities are recognized as income tax payers. In this case, they determine the tax base according to the rules of Article 321.1 of the Tax Code of the Russian Federation.

These rules oblige them to keep separate records of income and expenses that are made at the expense of the budgets of all levels according to the estimate, and the funds received by the institution from entrepreneurial activity.

Article 321.1 of the Tax Code of the Russian Federation establishes the rules for determining the tax base, in particular:

Represents the difference between the amount of income received from the sale of goods (work performed, services rendered) and non-operating income and the amount of actual expenses associated with doing business;

The amount of excess of income over expenses before the calculation of income tax cannot be used to cover expenses that are provided for in the estimate of a budgetary institution;

When determining the tax base for income tax, funds received from the budget for the conduct of statutory activities and expenses incurred from these funds do not participate.

What lies ahead for public institutions

Federal Law No. 63-FZ of April 26, 2007 introduced numerous amendments to the Budget Code of the Russian Federation, most of which come into force on January 1, 2008.

Thus, paragraph 11 of article 5 of this law expanded the rights of budgetary institutions in relation to the disposal of funds received from the implementation of entrepreneurial and other income-generating activities.

For example, income from the lease of property that is federally owned and transferred to the operational management of certain budgetary institutions is directed by them to the maintenance and development of their material and technical base in excess of appropriations from the federal budget.

The budget law may provide for provisions that will allow institutions to use funds received from the provision of paid services, gratuitous receipts from citizens and organizations (including from international and foreign governments), as well as funds from other income-generating activities to ensure their activities.

These funds can be used on the basis of the general permission of the main manager (manager) of budgetary funds, which indicates their sources and directions of use. The charter of a budgetary institution should also contain appropriate provisions on the possibility of conducting such activities.