Hello! In this article we will talk about the checks that individual entrepreneurs may face.
Today you will learn:
- What types of inspections exist;
- Which departments most often check the work of individual entrepreneurs;
- How to behave during an inspection and avoid a fine.
IP inspections in 2022
Individual entrepreneur without checks - is this possible?
Until 2016, individual entrepreneurs were under strict government supervision, and the fines imposed on small and medium-sized businesses were practically no different from those for the largest enterprises. Of course, this could not continue without public outrage.
Recently, changes have begun in the system of individual entrepreneur inspections. First of all, in February 2016, the Ministry of Economic Development put forward for discussion a proposal to replace the first fine for individual entrepreneurs with a warning.
There is also already a moratorium on inspections of small and medium-sized businesses, which from January 2016 until the end of 2022 allowed most individual entrepreneurs to go on “inspection holidays.”
Most inspections are regulated by Federal Law No. 294.
The moratorium applied to all scheduled inspections of the Ministry of Labor, the Ministry of Natural Resources, the Prosecutor's Office and a number of other departments, which were previously carried out once every three years.
At the end of the year, legislators were concerned about extending its validity for another two years, adopting Law No. 480-FZ of December 25, 2018. Thus, small businesses and individual entrepreneurs received relief in the form of exemption from scheduled inspections for the period from January 1 2022 to December 31, 2022.
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Grounds for inspections
IP inspections can be either planned, determined in advance, or unscheduled, for one of the possible reasons:
- Expiration of the period assigned for correcting violations after the previous inspection.
- Receipt of evidence or complaints to regulatory authorities about violations by the entrepreneur of the rights of consumers, employees and other norms.
- Request of the prosecutor and order of the head of the supervisory authority.
But even about an unscheduled inspection, the entrepreneur must be notified no later than 24 hours in advance. The exception is emergency situations and cases where the individual entrepreneur is suspected of causing harm to the health of people, animals or the environment.
Inspection plan
The schedule of scheduled inspections can be found on the website of the Prosecutor General's Office. There you can find out about upcoming inspections using TIN, OGRNIP and other company details.
Not all companies are lucky enough to be exempt from scheduled inspections. Some were not excluded from the plan.
These include:
- Organizations in the fields of education and medicine;
- Companies in the social sector service;
- Audit firms;
- Residential building management companies;
- Objects of the first and second class of industrial and other safety.
Types of checks
Any inspections are divided into on-site and documentary. As is already clear from the name, in the first case, auditors personally visit the enterprise, in the second, they only request a package of documents for verification. One test may follow from another. For example, an inspector begins by checking documents, but having discovered controversial issues, declares his intention to visit the individual entrepreneur’s workplace. We list the main authorities that carry out inspections of individual entrepreneurs:
- Inspectorate of the Federal Tax Service;
- Rospotrebnadzor;
- Ministry of Emergency Situations;
- Rostrud;
- Rostechnadzor;
- Rosselkhoznadzor, Rostransnadzor and Roszdravnadzor.
Regardless of the regulatory authority, the inspection usually begins with checking the registration of individual entrepreneurs, all constituent documents, licenses and the results of previous inspections.
Tax audit
Governing law: Article 14 of the Tax Code of the Russian Federation.
Tax authorities are especially interested in entrepreneurs who pay too low wages to employees or who have been operating at a loss for a long time.
It is prohibited to re-inspect an entrepreneur for the same tax for the same period.
A desk audit of taxes additionally controls the submitted reports. The inspectorate may request clarification for some data or confirmation of expenses. The audit lasts up to three months from the end of the reporting period. The auditor is given five days to correct errors that do not result in underpayment of taxes. If serious violations are discovered, the individual entrepreneur will be held accountable within ten days.
During an on-site tax audit, a more in-depth audit is carried out. Such an audit threatens only violators and tax evaders. Experts and witnesses may be additionally involved in the procedure, an inventory of premises and seizure of documents may be carried out.
The audit may last two months, or be extended to six in the following cases:
- The company has several separate divisions;
- Additional expertise is required;
- The individual entrepreneur violated the deadlines for issuing the required documents.
In addition to tax returns and financial statements, other documents are checked:
- Cash receipts;
- Bank statements;
- Confirmation of benefits enjoyed by the individual entrepreneur.
A thorough check of income and expenses affecting the amount of tax paid is organized. Tax regimes that do not depend on actual profit are less likely to be subject to unscheduled tax audits. Therefore, checks of individual entrepreneurs on the Unified State Tax Service result in fines.
A tax audit of a former individual entrepreneur is also permissible - within three years from the date of liquidation.
An audit of a closed individual entrepreneur can also be called final; its purpose is to identify inconsistencies and underpayment of taxes. This includes checking the debt that could remain with the entrepreneur.
Inspection by Rospotrebnadzor
Regulatory acts: “Regulations on the Federal Service for Supervision in the Sphere of Consumer Rights Protection” according to the Decree of the Government of the Russian Federation No. 322 of June 30, 2004.
All enterprises providing services or selling goods to the public are subject to inspection. The list of points to be checked is very wide.
Let's name the most popular:
- Signboard, price tags and price lists;
- Consumer corners;
- Lighting and ventilation in the room;
- Sanitary standards, availability of certificates of conformity for goods;
- Compliance with product expiration dates;
- When required, employees must have a dignity. books and uniforms.
Today, Rospotrebnadzor checks not only work with consumers, but also compliance with sanitary standards at the enterprise. Most often, such inspections visit grocery stores and catering establishments.
Labour Inspectorate
Rostrud monitors compliance with the rights of employees. Very often, the basis for an unscheduled inspection is employee complaints.
The following employers are also subject to strict supervision:
- Employing foreign citizens;
- Having minor workers;
- Paying too little wages.
All personnel documents are subject to verification:
- Employment contracts – compliance with labor legislation, correct execution, presence of signatures;
- Work records of employees;
- Staffing schedule and time sheets;
- Vacation schedules;
- Salary payment schedule.
It is not difficult to comply with hiring standards - just carefully study the Labor Code of the Russian Federation.
Fire inspection
Inspectors from the Ministry of Emergency Situations check the fire safety documentation at the enterprise and the availability of fire fighting and fire prevention means.
The documents most in demand for verification are:
- Orders from the manager to turn off equipment at the end of the shift, to establish smoking areas;
- Order on the frequency of fire safety training for employees and training logs;
- Evacuation plans.
In the premises, the fire on-site inspection checks:
- Compliance with the evacuation plan and the actual configuration of the building;
- Availability, location and accessibility of emergency exits;
- Materials for finishing walls, floors, ceilings, condition of bars on windows;
- The number and location of fire extinguishers and other fire fighting equipment;
- For rooms in which there are more than ten people - the state of the fire warning system.
It is important to remember that a fine from the fire inspectorate is not as bad as the damage from a fire that occurs due to a violation of standards.
Inspection by Rostechnadzor
The Rostechnadzor inspection issues licenses and inspects many types of activities that involve the use of natural resources and interact with hazardous production facilities (design, installation, transportation, and so on).
Subject of inspection: compliance with legal requirements in the field of industrial safety.
All possible violations, as a rule, are eliminated by the entrepreneur before obtaining a license, and for further checks it is enough to maintain compliance with all requirements.
Prosecutor's check
The inspection by the prosecutor's office is carried out solely on the basis of information about violations of individual entrepreneurs that do not fall under the control of another government body. If this is possible, the prosecutor's office is obliged to delegate the powers of the inspector to another agency; in other cases, it can conduct the inspection independently.
Without information about violations received from citizens, other legal entities or the media, the prosecutor's office cannot initiate an inspection. Therefore, entrepreneurs who do not break the law should not be afraid of it.
The prosecutor checks the authenticity of the complaint against the individual entrepreneur and, if the violation is confirmed, depending on its severity, the individual entrepreneur may be issued an order to correct the situation or a lawsuit may be initiated.
How to avoid a fine
Of course, the surest way to avoid a fine after checking is not to break the law. It is quite difficult, but still possible, to run a business in compliance with all legal regulations.
The first step is to study the laws. The most common fines imposed on entrepreneurs based on the results of state inspections are collected in Chapter 14 of the Administrative Code of the Russian Federation.
The Criminal Code should also not be overlooked. For example, under Article 199 you can get up to 6 years in prison for tax evasion.
What should an entrepreneur do during an inspection?
It’s good if the enterprise has a strict access control regime - this way inspectors will not be able to start an on-site inspection without the presence of the manager. In other situations you should be careful.
By law, an on-site inspection must be carried out in the presence of the entrepreneur or his deputy, but in practice it happens that the inspection encounters violations as soon as it enters the organization’s territory. Even conversations between employees on the porch can be used against the person being tested.
In this regard, the entrepreneur must:
- Organize a security system in advance;
- Instruct employees on the rules of communication with inspectors - only in the presence of the manager.
An on-site inspection in the absence of a responsible person is possible only in emergency situations, in cases of harm to the health of citizens or animals.
Before the inspection begins an on-site inspection, the entrepreneur needs to check the following:
- Familiarize yourself with the certificates of the inspectors (the data can be rewritten just in case).
- Accept against signature and study a copy of the inspection order. It must indicate the purposes of the inspection, types of control measures, the composition of the inspection commission, the date of the inspection and other conditions.
If all the documents are correct, you should not interfere with the verification, as this may result in an additional fine.
If the inspection is carried out as part of a criminal case, the person being inspected has the right not to answer questions until his lawyer arrives and not to sign documents (even the inspection report).
The person being inspected is obliged to provide inspectors with access to all documents and premises related to the subject of the inspection.
An audit log is created at the enterprise at the request of the manager. Its presence will help control the frequency of checks and many other factors.
Checking act
The result of the inspection is an act that records all the activities carried out and the violations detected. The entrepreneur’s signature on the act means his agreement with everything that is described there.
The individual entrepreneur has the right to add his objections to the inspection report.
Including justified objections to the act increases the entrepreneur’s chances of appealing the results of the inspection. Therefore, before signing the deed, you must study it carefully.
The presence of a lawyer during the inspection provides an additional guarantee that all rights of the individual entrepreneur are observed.
When is an unscheduled prosecutorial inspection of an individual entrepreneur in the Moscow region carried out?
The prosecutor's office is a system of supervisory authorities that monitor the implementation of laws on the territory of the Russian Federation. The prosecutor's office most often conducts checks on individual entrepreneurs based on a complaint received from an individual or legal entity. Read about the cases in which individual entrepreneurs face an unscheduled inspection by the prosecutor’s office and how it is carried out in the material of the mosreg.ru portal.
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When to expect a check
To conduct an unscheduled inspection of an individual entrepreneur, the prosecutor’s office must have grounds: a client’s complaint, information in the media about violations committed by the entrepreneur, the expiration of the prosecutor’s order, etc. The main difference between an unscheduled inspection and a scheduled one is that it can occur without notification.
If harm has been caused to the life or health of a person or animal, a threat has been made to a particular person, or a cultural monument or natural object has been damaged, then an inspection should begin immediately after this becomes known.
In this case, inspections can be carried out jointly - by the prosecutor’s office, fire safety or sanitary epidemiological supervision.
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How is the inspection carried out?
Pile of papers
Source: Photobank of the Moscow region
If the prosecutor's office receives information that a person is carrying out illegal actions that could harm the life and health of other people, an inspection can be carried out within 24 hours.
During an unscheduled inspection, prosecutors can only inspect those documents that contain violations. The prosecutor's review must be completed within 30 days, after which the prosecutor can issue a ruling or protest. The result of the verification is given to the applicant within a month.
When conducting an inspection, the head of the organization or other authorized person has the right to:
— be present during the inspection, give explanations on issues related to the subject of the inspection;
— receive from officials of the control body information that relates to the subject of inspection in accordance with Law No. 294-FZ;
— get acquainted with the results of the inspection and indicate in the inspection report your agreement or disagreement with them;
— appeal against the actions (inaction) of officials of the control body, which entailed a violation of the rights of the medical organization during the inspection, in administrative and (or) judicial proceedings in accordance with the legislation of the Russian Federation.
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Powers of the prosecutor
Source: Photobank of the Moscow region
During an unscheduled inspection, the prosecutor's office checks the entrepreneur's organization regarding the subject of the complaint. At the same time, the prosecutor's office does not have the right to monitor reporting and interfere in matters that relate, for example, to the tax service.
According to paragraph 1 of Art. 22 of the Federal Law of the Russian Federation “On the Prosecutor’s Office”, the prosecutor during an inspection has the following powers:
- has the right to access the necessary documentation and can request it;
- has unhindered entry to the enterprise after presenting an identification card;
- has the right to involve officials and citizens to provide explanations.
Responsibility for opposing an inspection
It is impossible to avoid an unscheduled inspection of the prosecutor. All attempts to interfere with this procedure will be regarded as opposition to the law, and penalties will be imposed on those responsible. All actions on the part of an individual entrepreneur will be recorded in the protocol.
For opposition provided during the verification process, an individual entrepreneur may also incur administrative penalties.
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If the verification procedure is violated
Any audit of a business is carried out by people, and all people, as we know, can sometimes make mistakes. A slight deviation from the inspection procedure established by law can play into the hands of a businessman - the results of such an inspection can be challenged.
An inspection may be considered illegal if:
- Scheduled inspections are carried out more often than once every three years;
- The scheduled inspection was not in the official schedule on the prosecutor's office website;
- The inspection deadlines specified in the order have been violated or its maximum duration has been exceeded;
- The inspectors did not present an order to conduct an inspection (or there was none at all);
- The auditors demanded the provision of documents or samples that were not related to the subject of the audit;
- At the end of the inspection, no report was provided.
Prosecutor's check. Part I - Inspection Notice
Due to the recent multiple increase in cases of appealing the actions and decisions of prosecutors to the courts, the lawyers of ANO Globus constantly analyze the legislation and judicial practice in this area, which allows us to better defend the interests of persons who turn to us to protect their rights.
So, the legislation does not regulate in detail the procedure for conducting a prosecutorial audit, and when conducting it, prosecutors are guided by the general rules on their powers and restrictions provided for by the Law on the Prosecutor's Office, as well as orders of the Prosecutor General's Office of the Russian Federation dated December 7, 2007 N 195 and dated March 17, 2017 N 172. Constitutional - the legal meaning of the provisions of the Law on the Prosecutor's Office, identified by the Constitutional Court of the Russian Federation, is generally binding and excludes any other interpretation in law enforcement practice (paragraph 8, paragraph 2 of the operative part of the resolution of February 17, 2015 No. 2-P, hereinafter referred to as Resolution No. 2-P, Part 5 of Article 79 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ “On the Constitutional Court of the Russian Federation”). In extremely rare cases, the court rejects references to the said Resolution No. 2-P, since it was adopted in relation to the rules for inspections of non-profit organizations, and not business entities (Resolution of the Seventeenth AAS dated July 15, 2015 No. 17AP-7249/15).
The restrictions and prohibitions provided for by Law No. 294-FZ for officials of state supervision (control) bodies do not apply to prosecutors when they exercise prosecutorial supervision (Clause 3, Part 3, Article 1 of Law No. 294-FZ).
Inspection Notice
Clause 3 of Art. 21 of the Law on the Prosecutor's Office obliges the person being verified to notify about the inspection no later than the day the inspection begins by familiarizing with the decision to conduct the inspection. In the absence of evidence of proper notification of a person about the conduct of a prosecutor's inspection against him, its grounds and deadline, the court may not accept the evidence collected by the prosecutor's office (resolution of the Supreme Court of the Russian Federation dated May 23, 2017 N 11-AD17-27, AS of the Central District dated 17.10. 2017 N F10-2795/16, decision of the Autonomous Court of the Sakhalin Region dated 05/08/2015 in case No. A59-225/2015; Autonomous Court of the Khanty-Mansiysk Autonomous Okrug - Ugra 04/14/2015 in case No. A75-222/2015, resolution of the Thirteenth AAS dated 24.03 .2014 N 13AP-26524/13; opposite decisions - decisions of the Second AAS dated October 22, 2015 N 02AP-8406/15, the Fifteenth AAS dated October 14, 2015 N 15AP-16353/15) or even admit that in reality an illegal unscheduled inspection took place another department whose employee was involved by the prosecutor (resolution of the Thirteenth AAC dated December 19, 2016 No. 13AP-28671/16, decision of the Irkutsk Regional Court dated April 16, 2015 in case No. 21-168/2015). The notification of the inspection itself may not contain information about the source of information about violations (Resolution of the Moscow District Administration of November 3, 2015 N F05-15425/15).
The prosecutor's reasoned decision to expand the subject (and therefore the scope) of the inspection must also be brought to the attention of the person being verified (paragraph two, paragraph 3, article 21 of the Law on the Prosecutor's Office, paragraph 5, paragraph 5.2 of the reasoning part of Resolution 2-P, Appendix 2 to Order No. 172). In practice, this requirement is met (decision of the Investigative Committee for Administrative Cases of the EAO Court dated 05/04/2016 in case No. 33a-274/2016), but not always (decision of the Krasnozersky District Court of the Novosibirsk Region dated 01/23/2017 in case No. 2a-36/2017 , Leninsky District Court of Omsk, Omsk Region dated 11/01/2016 in case No. 2a-6906/2016, Novosibirsk Region Administrative Court dated 05/29/2015 in case No. A45-6044/2015, resolution of the Fifth AAS dated 07/17/2015 N 05AP-5619/ 2015).
Officials of management bodies of commercial and non-profit organizations are obliged to begin fulfilling the prosecutor’s demands to conduct inspections and audits immediately (Clause 4 of Article 22 of the Law on the Prosecutor’s Office). However, the prosecutor often satisfies the manager’s request to postpone the inspection for a short period of time if it is motivated (for example, to ensure the presence of the necessary specialists, to allocate the prosecutor premises, office equipment, etc.).
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