The criteria for classifying organizations and individual entrepreneurs as small and medium-sized businesses have changed. The legal framework of the Russian Federation of Funds does not exceed 25%

25.10.2021

taken commercial organizations in the authorized capital of which the share of participation of the Russian Federation, constituent entities of the Russian Federation, public and religious organizations (associations), charitable and other funds does not exceed 25 percent, the share owned by one or more legal entities that are not small businesses does not exceed 25 percent and in which average population employees for does not exceed the following limit levels (small businesses):

in industry - 100 people;

in construction - 100 people;

in transport - 100 people;

in agriculture- 60 people;

in the scientific and technical sphere - 60 people;

in wholesale trade- 50 people;

in retail and consumer services for the population - 30 people;

in other industries and in the implementation of other activities - 50 people.

Small businesses also refer to individuals engaged in entrepreneurial activities without forming a legal entity”.

Thus, from the provisions of Article 3 of Law No. 88-FZ it follows: In order for an organization to be considered a small business entity, the following conditions must be met:

The organization must be only commercial;

The share of participation of the Russian Federation, constituent entities of the Russian Federation, public and religious organizations, charitable and other foundations in the authorized capital of the organization should not exceed 25%;

The share in the authorized capital owned by one or more legal entities that are not small businesses should also not exceed 25%;

The average number of employees for the reporting period should not exceed the allowable average number for the relevant type of activity.

If the organization does not meet at least one of the above conditions, it cannot be recognized as a small business entity.

The tax authorities have repeatedly drawn attention to the fact that non-profit organizations do not belong to small enterprises under any circumstances (Letter of the Federal Tax Service of the Russian Federation for the city of Moscow of May 3, 2006 No. 18-11 / 3 / 36722, Letter of the Federal Tax Service of the Russian Federation for the city of Moscow of March 9, 2004 year No. 21-09/15153).

According to paragraph 1 of Article 50 of the Civil Code of the Russian Federation, commercial organizations are recognized: “ organizations pursuing profit as the main goal of their activities". Commercial organizations in in accordance with paragraph 2 of article 50 of the Civil Code of the Russian Federation can be created in the form of:

Economic partnerships and companies;

production cooperatives;

State and municipal unitary enterprises.

The Civil Code of the Russian Federation provides for the possibility of creating:

Business partnerships (paragraph 2 of Article 66 of the Civil Code of the Russian Federation) in the form:

a) a general partnership;

b) limited partnerships;

Business companies (paragraph 3 of Article 66 of the Civil Code of the Russian Federation) in the form:

a) limited liability companies;

b) a joint-stock company;

c) companies with additional liability.

In accordance with the provision of paragraph 1 of Article 66 of the Civil Code of the Russian Federation, business partnerships and companies are recognized as commercial organizations with an authorized (share) capital divided into shares (contributions) of founders (participants). Property created at the expense of contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activity, belongs to it by the right of ownership.

A contribution to the property of a business partnership or company may be money, securities, other things or property rights or other rights having a monetary value.

Monetary value of the participant's contribution economic society is made by agreement between the founders (participants) of the company, and in some cases provided for by law, is subject to independent expert verification (paragraph 6 of Article 66 of the Civil Code of the Russian Federation). Business partnerships, as well as limited and additional liability companies are not entitled to issue shares.

In accordance with paragraph 1 of Article 107 of the Civil Code of the Russian Federation, a production cooperative is recognized as a voluntary association of citizens on the basis of membership for a joint production or other economic activity(production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor and other participation and the pooling of property share contributions by its members (participants).

Property owned by a production cooperative, in accordance with paragraph 1 of Article 109 of the Civil Code of the Russian Federation, is divided into shares of its members in accordance with the charter of the cooperative. The profit of the cooperative is distributed among its members in accordance with their labor participation unless otherwise provided by law and the charter of the cooperative. According to paragraph 3 of Article 109 of the Civil Code of the Russian Federation, a cooperative is not entitled to issue shares.

A unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including between employees of the enterprise” (Item 1 of Article 113 of the Civil Code of the Russian Federation).

The property of a state or municipal unitary enterprise is, respectively, in state or municipal ownership and belongs to such an enterprise on the basis of the right of economic management or operational management (paragraph 2 of Article 113 of the Civil Code of the Russian Federation).

As noted above, Law No. 88-FZ provides for the permissible average number of employees in the reporting period for each type of activity. At the same time, paragraph 2 of Article 3 of this Law on the Support of Small Business provides that the average number of employees in this case is determined taking into account all employees of a small enterprise, including those working under civil law contracts and part-time, taking into account the actual hours worked, and also employees of representative offices, branches and other separate subdivisions specified legal entity.

Note that the law does not contain criteria for classifying entities as small businesses in terms of revenue. In other words, an organization with a staff of 100 people, which has a huge revenue, from the point of view of the law will be classified as a small business and have the right to apply for state support.

If it carries out several types of activities (multi-profile), then it is classified as such according to the criteria of the type of activity, the share of which is the largest in the annual turnover or annual profit (paragraph 1 of Article 3 No. 88-FZ).

In addition to organizations, small business entities are also understood as individuals engaged in entrepreneurial activities without forming a legal entity (Article 3 No. 88-FZ).

In accordance with the norms of Article 2 of 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 obtaining 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.

Moreover, in the civil legislation both citizens of the Russian Federation and foreign citizens, as well as stateless persons are recognized as individuals.

Foreign citizen in accordance with Article 2 federal law dated July 25, 2002 No. 115-FZ "On legal status foreign citizens in the Russian Federation" is considered to be a person who is not a citizen of the Russian Federation and has evidence of citizenship (nationality) of a foreign state; and a stateless person is an individual who is not a citizen of the Russian Federation and does not have evidence of citizenship (nationality) of a foreign state. A foreign citizen temporarily residing in the Russian Federation is a person who has received a temporary residence permit, a foreign citizen permanently residing in the Russian Federation is a person who has received a residence permit.

Paragraph 1 of Article 23 of the Civil Code of the Russian Federation establishes the right of citizens to engage in entrepreneurial activities without forming a legal entity from the moment state registration as an individual entrepreneur. This right can be exercised from the moment the citizen becomes fully capable, i.e. in accordance with Article 21 of the Civil Code of the Russian Federation upon reaching 18 years of age.

So before you start entrepreneurial activity, a small business entity must first of all register and obtain a license for certain types activities (if the selected type of activity is subject to licensing).

In more detail with questions regarding the application of various taxation regimes by small businesses, the forms and procedure for submitting accounting, tax and statistical reporting, the procedure for state registration of business entities, you can find in the book of the authors of CJSC "BKR-Intercom-Audit" "Activities of small businesses".

which entered into force on June 30, increased the share of participation of foreign legal entities, as well as enterprises that are not small and medium-sized, in the authorized capital of small and medium-sized businesses from 25 to 49 percent. The same law establishes that the category of a small or medium-sized business (SME) changes only if the values of revenue and the number of employees are above or below the limit values for three (and not two, as before) calendar years.

Recall that the criteria for small and medium-sized businesses are given in Article 4 of the Federal Law of July 24, 2007 No. 209-FZ (hereinafter - Law No. 209-FZ). These entities include consumer cooperatives, commercial organizations (with the exception of state unitary enterprises and municipal unitary enterprises), individual entrepreneurs and farms, for which the following conditions are satisfied.

The first condition is the average number of employees

For the previous calendar year, the average number of employees of an organization or an individual entrepreneur should not exceed the number limits for each category of an SME subject:

from one hundred one to two hundred and fifty people inclusive for medium-sized enterprises;
up to one hundred people inclusive for small enterprises (micro-enterprises stand out among small enterprises - up to fifteen people).

The second condition is the proceeds from the sale of goods (works, services)

The proceeds of an organization or individual entrepreneur from sales, excluding VAT, for the last calendar year should not exceed 60 million rubles. for micro-enterprises, 400 million rubles. for small businesses and 1 billion rubles. for medium enterprises.

Limit values of revenue are approved by the Government of the Russian Federation. At the same time, the previous version of Article 4 of Law No. 209-FZ obliged such values to be reviewed every five years. The commented law excludes the requirement for such periodicity.
An important point: earlier, in order for an organization or individual entrepreneur to receive or lose the status of an SME, both conditions (indicators of average headcount and revenue) must be met or not met for two calendar years in a row. And under the new rules, effective from June 30, the category of an SME will change only if the values of revenue and the number of employees are above or below the limit values for three consecutive calendar years. That is, if, for example, revenue for 2013-2015. will exceed 400 million rubles, then the organization will cease to be recognized as a small business entity only in 2016.

The third condition (only for organizations) is the share of participation in the authorized capital

Until June 30, small and medium-sized businesses, in general, included organizations in the authorized capital of which:

the total share of participation of the state, subjects of the Russian Federation, municipalities, foreign organizations, public and religious organizations, as well as charitable and other funds did not exceed 25 percent.
the share of participation of one or more enterprises that are not small and medium did not exceed 25 percent.

Since June 30, the share requirements for some organizations have changed. Now, small and medium-sized businesses, in the general case, include organizations in the authorized capital of which:

the share of participation of the state, subjects of the Russian Federation, municipalities, charitable and other foundations, public and religious organizations in the authorized capital of the organization does not exceed 25 percent;
the total share of participation of foreign legal entities does not exceed 49 percent;
the total share of participation of one or more enterprises that are not small and medium does not exceed 49 percent.

Recall that organizations and entrepreneurs belonging to small businesses can significantly simplify their accounting and reporting (see ""). In addition, there is a simplified procedure for them. cash discipline(cm. " ").

An organization is classified as a small business if the total share of participation of legal entities that are not small and medium-sized businesses in its authorized capital does not exceed 25%. If the founders-legal entities are small enterprises themselves, then the organization founded by them is recognized as a small enterprise, even with a share of participation of more than 25%.

The rationale for this position is given below in the materials of the Glavbukh System

1. Directories:Criteria for attributing organizations and individual entrepreneurs to small and medium businesses

Types of business entities

Conditions for recognition as a small business entity

Base

Commercial organizations and consumer cooperatives*

The total share of participation of the state, constituent entities of the Russian Federation, municipalities, foreign organizations, public and religious organizations (associations), charitable and other funds in the authorized (share) capital (share fund) does not exceed 25 percent (with the exception of assets of joint-stock and closed-end mutual investment funds )

The share owned by one or more organizations that are not small and medium-sized businesses does not exceed 25 percent *

Commercial organizations, consumer cooperatives and individual entrepreneurs

For 2013-2017, the following limit values proceeds from the sale of goods (works, services) excluding VAT:

60 million rubles – for micro-enterprises;
400 million rubles – for small businesses;
1000 million rubles – for medium enterprises

3 This restriction does not apply to organizations:*

1) implementing (applying in practice) the results of intellectual activity (computer programs, databases, inventions, utility models, industrial designs, selection achievements, topologies of integrated circuits, production secrets (know-how)), the exclusive rights to which belong to the founders ( participants) of these organizations:

budgetary or autonomous scientific institutions;
educational organizations higher education which are budgetary or autonomous institutions;

2) whose founders (participants) are included in the list of companies approved by the Government of the Russian Federation that provide state support for innovative activities in the forms established.

2. Article:A story about who is a small business entity and what it gives

The criteria by which firms are classified as small businesses are listed in the Federal Law of July 24, 2007 No. 209-FZ “On the Development of Small and Medium-Sized Businesses in the Russian Federation”. There are three of them:*

The company's revenue - proceeds from the sale of goods, works or services (excluding VAT) cannot exceed 400 million rubles;

The number of employees is no more than 100 people;

The composition of the founders - the share of participation of legal entities in the authorized capital is limited. *

If among your founders there are only natural persons, it does not matter if they are Russian or foreign, you are definitely a small business.

But in a situation where among those who founded your company there is a legal entity or state entities - the Russian Federation, subjects of the Russian Federation, municipalities, you need to look at the share of their participation *. To be considered a small company, it is necessary that the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, public and religious organizations (associations), charitable and other foundations in your authorized capital does not exceed 25%.

In relation to the founders - ordinary legal entities, another restriction applies (it does not apply only to firms associated with intellectual and innovative activities). The share of participation of ordinary legal entities should not exceed 25%, only if they themselves are not small and medium-sized businesses. If the founders-legal entities are small enterprises themselves, then the company founded by them will also be a “baby” even with a share of participation, for example, 40%. But, it is worth recalling that general rule the “simplifiers” cannot have such a situation when legal entities have a share in the authorized capital of more than 25%. The exceptions are those "simplifiers" that are listed in paragraph 3 of Article 346.12 of the Tax Code of the Russian Federation. For example, those firms on the simplified tax system, authorized capital which consists entirely of contributions public organizations disabled people. But such “simplifiers” will no longer be small*.

Description of the situation:

There is a possibility that in our organization by the end of the year (in November) the sales turnover will exceed the established limit for small enterprises. If this happens then:

Questions:

1. Does the enterprise lose the status of a small business from the new year?

2. Is the reporting for the year submitted in full?

3. Does PBU 18/02 apply in this case (if so, from what date)?

Answers on questions:

The criteria for classifying an organization as a small business are defined in Article 4 of the Federal Law of July 24, 2007 No. 209-FZ “On the Development of Small and Medium-Sized Businesses in the Russian Federation”.

So, in particular, small businesses include commercial organizations entered in the Unified State Register of Legal Entities that meet the following conditions:

the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations (associations), charitable and other funds in the authorized (share) capital (share fund) of these legal entities should not exceed 25% (for except for the assets of joint-stock investment funds and closed-end investment funds), the share of participation owned by one or more legal entities that are not small and medium-sized businesses should not exceed 25%;
the average number of employees for the previous calendar year should not exceed the following limit values for the average number of employees for each category of small businesses: up to 100 people inclusive - for small businesses; among small enterprises, micro-enterprises stand out - up to 15 people;
proceeds from the sale of goods (works, services) excluding VAT or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values established by the Government of the Russian Federation for each category of small businesses.

The maximum amount of revenue for small businesses is determined by Decree of the Government of the Russian Federation of July 22, 2008 No. 556 and is:

for small enterprises - 400 million rubles. per year (without VAT);
for micro-enterprises - 60 million rubles. per year (without VAT).

Actual values are determined based on the results of the calendar year. And only if they exceed the established limit values for 2 calendar years in a row, after these 2 years the enterprise moves to another category.

We also note that a situation may arise when the categories of business entities determined by these indicators will differ. In such cases, one should judge whether a business belongs to a small or medium-sized one, based on the highest value of the indicator.

This means that if, in terms of average size, a commercial organization belongs to the sphere of small business, and in terms of revenue, it belongs to medium-sized business entities, then, in our opinion, this entity should be considered a medium-sized business entity.

If an economic entity does not correspond to small businesses in terms of average number (but this indicator is within the limits for medium-sized businesses), but in terms of revenue (or book value) is within the limits established for small businesses, then it will be considered medium.

1. Thus, taking into account the above norms of the legislation of the Russian Federation (criteria for classifying an organization as a small business), it seems that if an organization that is a small business has indicators or conditions provided for by Federal Law No. 209-FZ of July 24, 2007, exceed the allowable values for two years in a row, then the organization ceases to be a small enterprise and moves into the category of medium. In this case, as noted above, it is sufficient that at least one criterion is not met.

2. Given that the status of an enterprise is determined based on the results of two years, an enterprise that was a small enterprise will be required to submit financial statements in full only on the basis of the results of the year following the two previous years in which the organization did not meet the criteria for a small enterprise. In the case specified in the request, if the organization does not meet any criterion at the end of the first year, then it does not lose the status of a small enterprise, and is not required to provide reports in full.

3. In accordance with paragraph 2 of PBU 18/02, approved by the Order of the Ministry of Finance of the Russian Federation of November 19, 2002 No. 114n, this Regulation may not be applied by small businesses and non-profit organizations. For all other organizations, its application is mandatory. Accordingly, an organization that was a small enterprise is obliged to apply the specified PBU from the beginning of the year following the two previous years in which the organization did not meet the criteria for a small enterprise (as a result of which it loses the status of a small enterprise).

On a note!

Non-application of PBU 18/02 can be considered as an evasion accounting according to established order.

According to Article 18 of the Federal Law of November 21, 1996, No. 129-FZ “On Accounting”, persons responsible for organizing and maintaining accounting records, in the event of evading accounting in the manner prescribed by the legislation of the Russian Federation and regulations bodies that regulate accounting, distortion of financial statements and non-compliance with the deadlines for their submission and publication are subject to administrative or criminal liability in accordance with the legislation of the Russian Federation.

According to Article 15.11 of the Code of Administrative Offenses of the Russian Federation, a gross violation of the accounting rules, which, in particular, means the distortion of any article (line) of the accounting form by at least 10 percent, entails the imposition of an administrative fine on officials in the amount of two thousand to three thousand rubles.

This means that evading the application of PBU 18/02 can lead to a gross violation of the accounting rules.

Thus, in case of non-application of RAS 18/02 officials responsible for organizing and maintaining accounting records may be held administratively liable under Article 15.11 of the Code of Administrative Offenses of the Russian Federation.

However, in our opinion, the occurrence of the above risks is unlikely.

Federal Law No. 156-FZ of June 29, 2015 entered into force on June 30. He amended the Law of July 24, 2007 No. 209-FZ, slightly changing the criteria for classifying an economic entity (legal entity or individual entrepreneur) as a small and medium-sized business. These include consumer cooperatives, commercial organizations (except for SUEs and MUPs), individual entrepreneurs and farms, for which certain conditions are met.

Average number of employees

For the previous calendar year, the average number of employees of the subject should not exceed:

from 101 to 250 people inclusive for medium enterprises;
up to 100 people inclusive for small enterprises (micro enterprises stand out among small enterprises - up to 15 people).

Revenue from the sale of goods (works, services)

The subject's proceeds from sales, excluding VAT, for the previous calendar year must not exceed the limit values established by the Government of the Russian Federation for each category of small and medium-sized businesses.

According to the new rules established by the Law of June 29, 2015 No. 156-FZ, effective from June 30, the category of a small and medium-sized business will change if the values of revenue and the number of employees are above or below the limit values for three consecutive calendar years (previously - within two years).

For organizations - a share in the authorized capital

From June 30, small and medium-sized businesses include organizations in the authorized capital of which:

the share of participation of the state, subjects of the Russian Federation, municipalities, charitable and other foundations, public and religious organizations does not exceed 25 percent;
the total share of participation of foreign legal entities does not exceed 49 percent;
the total share of participation of one or more enterprises that are not small and medium does not exceed 49 percent.

Until June 30, small and medium-sized businesses included organizations in the authorized capital of which:

the total share of participation of the state, constituent entities of the Russian Federation, municipalities, foreign organizations, public and religious organizations, as well as charitable and other foundations did not exceed 25 percent;
the share of participation of one or more enterprises that are not small and medium did not exceed 25 percent.

The Government of the Russian Federation has also set new limits on sales proceeds for classifying economic entities as small and medium-sized businesses. Decree No. 702 of July 13, 2015 established that the threshold for revenue from the sale of goods (works, services) for the previous calendar year, excluding VAT, for micro-enterprises is 120 million rubles, for small enterprises - 800 million rubles, for medium-sized enterprises - 2 billion rubles.

Recall that Decree of the Government of the Russian Federation dated February 9, 2013 No. 101, which has become invalid, in order to determine the category of an economic entity, revenue limits for companies and individual entrepreneurs were set to be half as much. For micro-enterprises - 60 million rubles, small enterprises - 400 million rubles, medium-sized enterprises - 1 billion rubles.