My father has an excellent welding machine. When a neighbor’s neighbor found out about it, he asked if it was sometimes possible to rent the device for money.
The father barely knows the man. Therefore, on the one hand, it is risky to agree. On the other hand, a thousand rubles for an item that often sits idle is not unnecessary.
Can a father, not being an individual entrepreneur, rent out the device?
Do I need to take a deposit in the amount of the full cost of the device each time? Or is it enough to conclude an agreement in order to receive the same money through the court in the event of a breakdown or non-return?
What about taxes?
Greetings, Pavel.
Anton Dybov
tax expert
Your father can rent out a welding machine without registering an individual entrepreneur. With a deposit, or rather a security deposit, it is more reliable, but it must be negotiated with the tenant. You need to pay personal income tax on rental income and report it to the tax office.
Leasing personal property is not entrepreneurship
By law, entrepreneurial activity is considered to be an activity that systematically generates profit, in particular from the use of property. Which involves registering an individual entrepreneur.
At the same time, the owner has the right to rent out his property. And an ordinary person, without individual entrepreneur status, too. If you oblige anyone who intends to lease personal property to first register an individual entrepreneur, the result will be a restriction of the owner’s rights.
The parties decide for themselves what the lease agreement for movable property will be
This is the required minimum. The rest is a matter of discussion between the landlord and the tenant. If the latter agrees, a security deposit can be stipulated in the contract.
If the “neighbor of the neighbor” carefully pays the fee and then hands over the device safe and sound, the father will return the money. Otherwise, he will leave himself the amount to cover damage or rent debt.
- authorized capital of at least 1 million rubles;
- there is no debt in payment of taxes, fees and other payments to the budget;
- the manager has a higher education, as well as work experience in the field of employment or employment of the population for at least 2 years over the last 3 years;
- the manager has no criminal record for committing crimes against the person or in the economic sphere;
- applies general system taxation. That is, organizations using the simplified tax system will not be able to provide services for the provision of workers (personnel).
Please remember that there are currently no such restrictions. That is, services for the provision of personnel can formally be provided by any organizations and individual entrepreneurs, including those applying special tax regimes.
In addition, not only employment agencies, but also some organizations will be able to provide their workers (Article 341.3 of the Labor Code of the Russian Federation, paragraph 2, paragraph 3, Article 18.1 of Employment Law No. 1032-1):
- subsidiary - parent company;
- shareholders - joint-stock companies and other shareholders.
When can staff be provided?
The legislator limited the arbitrary use of “agency labor” to specific cases. These include the provision of personnel by the employment agency (Article 341.2 of the Labor Code of the Russian Federation):
- an entrepreneur or legal entity to temporarily fulfill the duties of absent employees whose place of work is retained (for example, during an employee’s vacation under Article 114 of the Labor Code of the Russian Federation, during a temporary transfer to another job under Article 72.2 of the Labor Code of the Russian Federation, etc.);
- an entrepreneur or legal entity to carry out work related to a deliberately temporary (up to 9 months) expansion of production or the volume of services provided. The decision to use “agency labor” is made taking into account the opinion of the trade union body if more than 10% of the average number of workers is involved (clause 10 of article 18.1 of the Employment Law No. 1032-1);
- to an individual (not an entrepreneur) for personal services and assistance with housekeeping. For this case, the time period is not specified.
At the same time, the legislator expanded the possibility of using the labor of certain categories of workers:
- full-time students;
- single and large parents raising minor children;
- persons released from prison.
The employment agency can send them to work for another person not only in the listed cases, but also in cases provided for concluding a fixed-term employment contract. For example, it allows you to conclude a fixed-term employment contract for seasonal or temporary (up to 2 months) work.
When it is prohibited to provide personnel
Employment agencies are prohibited from sending employees to work for the following purposes (clauses 12, 13 of Article 18.1 of Employment Law No. 1032-1):
- replacing workers of the host country participating in the strike;
- performance of work in case of downtime, bankruptcy proceedings of the receiving party, introduction by the receiving party of a part-time working regime in order to preserve jobs in the face of the threat of mass layoffs of workers;
- replacement of workers of the receiving party who refused to perform work in accordance with labor legislation, incl. due to a delay in wages for more than 15 days;
- performing certain types of work at facilities classified as production facilities of hazard classes I and II, the lists of which are approved in the manner established by the Government of the Russian Federation;
- performing work in workplaces where working conditions are classified as hazardous working conditions of the 3rd or 4th degree or dangerous working conditions;
- filling individual positions in accordance with the staffing schedule of the receiving party, if this is a condition for obtaining a license, permission for a certain type of activity, membership in a self-regulatory organization or issuing a certificate of admission to a certain type of work;
- performing work as crew members of sea vessels and mixed (river - sea) navigation vessels.
The legislator clarified that the law may establish additional restrictions on sending workers to the receiving party.
Relations between the employment agency and the receiving party
“Agency labor” is provided on the basis of a contract for the provision of personnel. Under this agreement, the contractor (employment agency) temporarily sends its workers, with their consent, to the customer (the receiving party) to perform labor functions in accordance with their employment contracts with the contractor. Employees work in the interests, under the management and control of the customer, who pays for the services provided by the contractor (clause 2 of article 18.1 of Employment Law No. 1032-1). Despite the fact that the staff works in the interests of the customer, the employer is the contractor, that is, the employment agency (clause 1 of article 18.1 of the Employment Law No. 1032-1, part 1 of article 341.1 of the Labor Code of the Russian Federation).
The contract must include a mandatory condition that the host party ensures safe conditions and labor protection (Clause 11, Article 18.1 of Employment Law No. 1032-1).
The employment agency is obliged to monitor whether the actual use of personnel corresponds to the functions specified in the employment contracts, as well as whether the receiving party complies with labor law standards. In turn, the receiving party has no right to prevent this (Part 10 of Article 341.2 of the Labor Code of the Russian Federation). Since the receiving party is involved in labor relations and is obliged to comply with labor and labor protection legislation, it may be brought to administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation.
If an accident occurs to an employee during the production activities of the receiving party, it is investigated in accordance with the requirements of the Labor Code of the Russian Federation. The receiving party forms a commission, which includes a representative of the employer who sent the employee. Failure to arrive or untimely arrival of the specified representative does not change the timing of the investigation (Part 5 of Article 229, Article 341.4 of the Labor Code of the Russian Federation).
For the obligations of the employer who provided the employee under the contract for the provision of personnel (wages, compensation, vacation pay, payment upon dismissal and other payments to the employee), the receiving party bears subsidiary liability (Article 341.5 of the Labor Code of the Russian Federation).
The legislator does not stipulate other mandatory conditions for the conclusion, execution and termination of an agreement. This means that the parties are given freedom to choose the terms of the contract. So, in paragraph 8 of Art. 341.2 of the Labor Code of the Russian Federation stipulates that the contract may provide for:
- the right of the receiving organization to demand from the assigned employee the performance of labor duties, careful handling of property, and compliance with internal labor regulations;
- the obligation of the receiving party to provide the assigned employee with equipment, tools, technical documentation and other means necessary to perform labor duties;
- the obligations of the receiving party to provide for the everyday needs of the assigned employee related to the performance of his job duties;
- the obligation of the receiving party to remove from work or not allow the assigned employee to work in the cases specified in Part 1 of Art. 76 Labor Code of the Russian Federation. The employer must be notified immediately of an employee being suspended or barred from work.
The rights and obligations of the employee and the receiving party relative to each other are specified in the employment contract between the employment agency (performer) and the employee. Essentially, this means that this employment contract regulates the labor relations between the assigned employee and the receiving party (customer). And the employment agency acts as an intermediary between them.
Despite the fact that the receiving party may demand that the employee fulfill his job duties and comply with work regulations, it cannot bring him to disciplinary liability, since it is not his employer (Article 192, Part 4 of Article 341.2 of the Labor Code of the Russian Federation). That is, the receiving party cannot directly influence the employee, and issues related to the quality of work and the employee’s qualifications should be resolved with the employment agency. To avoid conflict situations, we recommend that the parties specify in detail in the contract not only the rights and obligations, but also the responsibilities of the parties.
In addition, in our opinion, the relationship between the customer and the contractor under the contract for the provision of personnel is of a civil law nature. Let us note that the courts, when considering disputes between the parties under these agreements, apply the provisions of Chapter 39 of the Civil Code of the Russian Federation on the provision of paid services (see resolutions of the Federal Antimonopoly Service of the North Caucasus District dated 10/14/2011 No. Ф08-6382/11, Moscow district dated 03/09/2010 No. KG-A41/665-10 and etc.).
Relationship between employment agency and employee
Firstly, the legislator for the first time determined that the relationship between the employee and the employment agency that sends him to work with the receiving party is labor. Moreover, the employment agency is the employer in relation to such an employee and enters into an employment contract with him (Part 1 of Article 341.2 of the Labor Code of the Russian Federation). This change was dictated by the desire of the legislator to protect the interests of the employee. Indeed, in this case, the employer is obliged to comply with the rules of the Labor Code of the Russian Federation on paying wages to the employee, providing him with guarantees and compensation, annual paid leave, compliance with the dismissal procedure, etc.
When an employee is sent to the receiving party, labor relations do not arise between it and the employee (Part 4 of Article 341.2 of the Labor Code of the Russian Federation).
Secondly, the specifics of concluding an employment contract between an employee and an employment agency are regulated. Such an agreement must contain a condition that the employee, at the order of the employer, perform a certain labor function in the interests, under the management and control of persons who are not employers under this employment contract (Part 1 of Article 341.2 of the Labor Code of the Russian Federation).
The remuneration of third-party workers must be no less than the remuneration of workers of the receiving party of the same qualifications, performing the same labor functions (Part 2 of Article 341.1 of the Labor Code of the Russian Federation). Compensation for work with harmful and (or) dangerous working conditions is established on the basis of information provided by the receiving party (Part 3 of Article 341.1 of the Labor Code of the Russian Federation).
When sending an employee to work with a specific host party (with which an agreement on the provision of personnel has been concluded), the employment agency and the employee enter into an additional agreement to the employment contract. This agreement is an integral part of the employment contract and must contain information (Part 5 of Article 341.2 of the Labor Code of the Russian Federation):
- about the receiving party, including its name (full name - for an individual), information on identity documents (for an individual), TIN of the receiving party (with the exception of an individual who is not an entrepreneur);
- on the place and date of concluding the employment contract;
- about the number and validity period of the contract for the provision of personnel.
Additional agreements to the employment contract should be concluded with the employee for each receiving party for whom he will work (Part 6 of Article 341.2 of the Labor Code of the Russian Federation). Such an agreement may also contain additional rights and obligations of the employee and the receiving party, reflected in the agreement on the provision of personnel (clause 8 of Article 341.2 of the Labor Code of the Russian Federation, see above for the terms of the agreement on the provision of personnel).
If the accreditation of an employment agency is suspended or revoked, it loses the right to enter into employment contracts for the placement of workers under a personnel supply agreement. However, all rights and obligations under previously concluded employment contracts are retained (Clause 9, Article 18.1 of the Employment Law No. 1032-1).
Providing labor for foreign workers
The legislator noted that when providing labor to foreign workers, the norms of migration legislation must be observed (Article 6 of the Law). So, according to paragraph 8 of Art. 18 of the Federal Law of July 25, 2002 No. 115-FZ “On the legal status of foreign citizens in the Russian Federation”, the employer or customer of work (services) who invited a foreign citizen to Russia for the purpose of carrying out work activities or who entered into an employment or civil law agreement with him for the performance works (provision of services), are obliged to:
- have permission to attract and use foreign workers, if provided by law. Violation of this norm entails liability: for officials a fine in the amount of 25 to 50 thousand rubles, for legal entities - from 250 to 800 thousand rubles or administrative suspension of activities for a period of 14 to 90 days (Clause 2 of Article 18.15 of the Code of Administrative Offenses RF);
- ensure that a foreign citizen obtains a work permit. Engaging a foreign citizen to work without the appropriate permit threatens officials with a fine of 25 to 50 thousand rubles, for legal entities - from 250 to 800 thousand rubles, or suspension of activities for a period of 14 to 90 days (Clause 1 of Article 18.15 of the Code of Administrative Offenses of the Russian Federation) ;
- notify the tax authority about the attraction and use of foreign workers. For violating this rule, a fine of 35 to 50 thousand rubles may be imposed on an official, a fine from 400 to 800 thousand rubles on a legal entity, or suspension of activities for a period of 14 to 90 days.
It follows from these provisions that an employer (employment agency or other entity) providing foreign personnel to another organization must comply with these rules. Otherwise, he may be subject to administrative liability. However, it is not clear whether these rules apply to the receiving party (the customer under the contract for the provision of personnel). Some courts recognize it as legitimate to bring to administrative liability an organization that uses the labor of third-party foreign workers without the necessary permits (see decisions of the Federal Antimonopoly Service of the Volga-Vyatka District dated 06.11.2013 No. Ф01-11637/13, Federal Antimonopoly Service of the North Caucasus District dated 05/29/2013 No. Ф08-2341/13, FAS Volga region dated June 13, 2012 No. Ф06-2670/12).
In that case, if an individual is registered as an individual entrepreneur, the question does not arise at all: Everyone understands that entrepreneurs can rent premises for offices, shops, warehouses or workshops - and can, if possible, rent out such real estate. But is registration with the Unified State Register of Enterprises required in order to enter into such agreements?
In reality, no. Art. 608 of the Civil Code of the Russian Federation states that property can be leased either by the owner, or by a person authorized by him, or by someone who, by virtue of law, is granted the right to act on behalf of the owner. The law no longer mentions any additional restrictions (for example, the need to have individual entrepreneur status and register with the Unified State Register of Individual Entrepreneurs) and does not establish any barriers.
Article 608 of the Civil Code of the Russian Federation. Landlord
The right to lease property belongs to its owner. Lessors can also be persons authorized by law or the owner to lease property.
The mere fact of leasing real estate of any type is not enough to talk about entrepreneurship. The Plenum of the Supreme Court of the Russian Federation in 2004, by resolution No. 23 concerning illegal entrepreneurship, clarified that if an individual has real estate, but he personally does not need it at this time, he has the right to use it, including for renting out (clause 2 resolutions). A similar position was expressed in paragraph 13 of the resolution of the Plenum of the RF Armed Forces No. 18 of 2006.
Thus, a one-time transaction is not enough to hold a citizen accountable for illegal business or to require him to urgently register with the Unified State Register of Individual Entrepreneurs. It is required that such transactions be systematic.
Can an individual be a landlord?
For organization
There is no direct ban on this. According to Article 130 and Article 213 of the Civil Code of the Russian Federation, a citizen has the right to own any property for which restrictions are not established by law - and to dispose of his property as he sees fit.
Accordingly, from the point of view of current legislation, there is no prohibition on leasing real estate from an individual to a legal entity - and is not expected in the foreseeable future.
For another individual
To the question whether it is possible to rent out non-residential premises to an individual, the answer from the legal perspective is positive. The provisions of the Civil Code regarding the lease agreement do not in any way limit the subject composition of the participants in the legal relationship. Accordingly, there are no restrictions on agreements under which one citizen, who is not an individual entrepreneur, leases real estate to a second person, who also does not have entrepreneurial status, any real estate property - including non-residential ones.
The mere conclusion of a property lease agreement gives the tenant the right only to demand that the property be transferred to him. The question of what the tenant will do with it later is not considered by law, and no restrictions are placed. Accordingly, even if one citizen rented out a non-residential property to another, and he used it for illegal business, the agreement will still not be declared invalid.
Are there any restrictions?
The only legal limitation for renting is the need to pay taxes. No one has canceled personal income tax - and therefore if an individual rents out non-residential premises, he will need to pay:
- 13% - if he is not an individual entrepreneur;
- 6% – if the individual entrepreneur is “simplified”.
However, the Unified State Register of Real Estate, where real estate rights are recorded, does not know the division of citizens into individual entrepreneurs and non-individual entrepreneurs - in it the distinction is established only at the level of “individuals - organizations”. Therefore, the contract itself can be concluded without restrictions.
Is it possible to enter into an agreement as a tenant?
As for the question of whether an individual can rent non-residential premises, there are no restrictions here either. Moreover, Some of the non-residential real estate can also be used for personal purposes. For example, the law does not contain any prohibitions on a citizen renting a garage to house his personal car, which is not used for commercial activities.
Another thing is that renting clearly commercial real estate can raise questions from regulatory authorities - and even provoke an audit. But the law itself does not contain a ban on such actions.
Conclusion
Thus, having owned non-residential real estate, a citizen has the right to rent it out without registering as an individual entrepreneur in the Unified State Register of Individual Entrepreneurs. If the transaction was a one-time transaction and has no signs of systematicity, the law does not establish any obstacles.
Questions may arise only in cases where the object bears clear signs of a commercial purpose - but even in this situation there is no direct legal prohibition.
The organization plans to rent out part of the non-residential premises to an individual. An individual can only present a passport. Does an organization have the right to rent out part of its own non-residential building (shop) to individuals (namely, only on the basis of a passport). If this is possible, then what are the features when leasing real estate to an individual, incl. for a foreigner, how to make payments?
Answer:
1) Legislation Russian Federation does not prohibit renting out non-residential premises to individuals who are not individual entrepreneurs. When receiving funds in cash, it is necessary to take into account the requirements of Federal Law No. 54 of May 22, 2003.
2) It should be taken into account that if non-residential premises are rented to a foreign citizen, then all responsibility for leasing the premises rests with the landlord. In addition, in some cases, contracts concluded with a non-resident fall under the rules requiring the provision of a transaction passport.
3) It is important to note that illegal business activities of individuals (store tenants) may have signs of an administrative offense (14.1 of the Code of Administrative Offenses of the Russian Federation) and a criminal offense (Article 171 of the Criminal Code of the Russian Federation).
The parties independently stipulate the procedure for paying lease payments in the lease agreement (Article 614 of the Civil Code of the Russian Federation). In the case of cash payments, the lessor is obliged to use cash registers in accordance with Federal Law No. 54 of May 22, 2003 “On the use of cash register equipment when making cash payments and (or) payments using payment cards”).
Rationale:
- In accordance with paragraph 1 of Art. 130 of the Civil Code of the Russian Federation, immovable things include land plots, everything that is firmly connected to the land, the movement of which is impossible without disproportionate damage to their purpose. Immovable property also includes aircraft and sea vessels, inland navigation vessels, and space objects subject to state registration. The law may classify other property as immovable property.
Land plots, buildings, structures, equipment, and other things that do not lose their natural properties during their use (non-consumable things) can be leased.
The right to transfer property for rent belongs to its owner (Article 608 of the Civil Code of the Russian Federation).
Accordingly, both an individual and a legal entity have the right to lease property owned by him to both individuals and legal entities. Those. dispose of at your own discretion.
Tenants under a lease agreement can be any individuals or legal entities (including foreigners).
At the same time, it should be taken into account that the tenant (individual) in accordance with Art. 615 of the Civil Code of the Russian Federation is obliged to use leased property (non-residential premises) in accordance with the terms of the lease agreement or in accordance with the purpose of the property (if the purpose is not specified in the agreement).
In other words, the use of non-residential premises for the residence of citizens, or for entrepreneurial activity without registration as an individual entrepreneur is prohibited.
- If non-residential premises are rented to a foreign citizen, the owner should take into account the following provisions:
In Chapter 18 of the Code of Administrative Offenses of the Russian Federation, if the tenant does not have permission to hire foreign labor or one of his employees works without a work permit, the FMS authorities can fine the landlord (as well as the sublessor):
- company - by 450,000 - 800,000 rubles;
- its manager - by 45,000 - 50,000 rubles;
- entrepreneur - for 350,000 - 800,000 rubles.
In addition, it should be taken into account that by Federal Law No. 173 of December 10, 2003 “On Currency Regulation and Currency Control,” the Central Bank of the Russian Federation, in order to ensure accounting and reporting on currency transactions, can establish uniform rules for residents to issue transaction passports in authorized banks when carrying out currency transactions. transactions between residents and non-residents.
The main tool for ensuring accounting and reporting on currency transactions and implementing currency control is the transaction passport (Part 1, Article 20, Clause 12, Part 4, Article 23 of Law No. 173-FZ).
The rules and procedure for preparing transaction passports, as well as contracts to which the requirements for their execution apply, are established by Bank of Russia Instruction No. 138-I dated June 4, 2012 (hereinafter referred to as Instruction No. 138-I).
- shall be punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to four hundred eighty hours, or by arrest for a term of up to six months.
For the same act:
- committed by an organized group;
- associated with the extraction of income on a particularly large scale:
- shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, or by imprisonment for a term of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months or without it.
Please note that legislation may have changed. The expert's opinion is based on the provisions of the legislation in force on the date of preparation of the consultation
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