“The jurisdiction of the arbitration court and preferential loans”: experts praised the initiative to equate self-employed workers with SMEs

The draft amendment to the Federal Law of July 24, 2007 No. 209-FZ “On the Development of Small and Medium-Sized Businesses in the Russian Federation” proposes to classify entities applying a special tax regime as small and medium-sized businesses, equating them to the category of micro-enterprises, “in connection with the formal compliance by professional taxpayers of income tax with the main criteria for classifying organizations as micro-enterprises.”

RB.RU interviewed experts and found out what changes would occur for self-employed workers if they were included in the register of SMEs.

Arbitration court instead of a court of general jurisdiction

Sergey Elin, expert of the Moscow branch of Opora Rossii on financial and legal security of companies and head of the audit and consulting group AIP He notes that self-employment was introduced as an experiment and has proven its effectiveness, but not all issues have been resolved in detail from the perspective of the regulatory framework. Currently, questions often arise about police practice.

“The main dilemma is how to evaluate self-employed persons, their activities in providing services, performing work and delivering goods. You can evaluate them closer to entrepreneurial activity, that is, adhere to the same principles that apply to entrepreneurs and individual entrepreneurs. In this case, in disputes with such persons, the jurisdiction of an arbitration court should be, and not a court of general jurisdiction, laws such as consumer protection, requirements for specifying services, etc. should be applied. That is, all regulatory requirements that apply to business, entrepreneurial activity, should be transferred to self-employed citizens, perhaps with some details, but with the same logic, starting with jurisdiction, etc.,” Elin said.

The second option is to consider that a self-employed person is still considered an individual who does not carry out entrepreneurial activities, says the expert. In this case, a completely different approach will be required.

“In current practice, there is a greater shift towards a business approach, and this is logical. By the way, this question is also relevant in terms of lending and banking aspects. How do banks view citizens? On the same basis as individual entrepreneurs or just as ordinary citizens? Therefore, approving the legal status of self-employed persons according to the same principles as for micro-enterprises is a completely logical initiative and fits into the general vector that is developing in judicial and police practice,” Elin explained.

Access to benefits

Petr Markov, General Director of Anabar Market Service believes that equating self-employed workers with SMEs can simplify their access to preferential loans.

“However, there are concerns that this proposal will not be implemented, as banks may view self-employed people as unreliable borrowers,” Markov suggested.

The deputies who took the initiative to equate self-employed workers with micro-enterprises believe that this would simplify their access to public contracts, but, in their opinion, Head of the Business Development Department of the Self-Employed Segment of Alfa-Bank Ilya Norinthe self-employed are already its participants.

“Almost from the very beginning of the experiment on self-employment, professional taxpayers of income tax were classified as SMEs in procurement by state-owned enterprises. They are entitled to all the benefits provided for small businesses. Therefore, self-employed persons have priority right to participate in procurement under 44-FZ. In addition, according to Article 44-FZ, the customer is obliged to purchase from small businesses a certain volume of purchases planned for the year,” Norin said.

According to an expert in the field of self-employment, in recent years small businesses, including freelancers, have been actively increasing their participation in public procurement; today this segment accounts for 20-25% of the total volume of suppliers;

as he believes Managing Partner of Alcohol Law Firm Dmitry TerentyevEquating self-employed workers with micro-enterprises will not change anything in the field of alcohol trade.

“Self-employed people will not be able to sell alcoholic products and there will be no more opportunities in the alcohol market,” the expert believes.

The expert noted that the initiative concerns only amendments to the Federal Law of July 24, 2007 No. 209-FZ “On the Development of Small and Medium-sized Businesses in the Russian Federation” and nothing more, which means that no significant changes are to be expected from self-employed workers.

Restrictions for self-employed workers

Markov believes that the initiative to equate self-employed workers with micro-enterprises does not seem logical, as it is not clear whether most of the restrictions will be lifted.

“Self-employed workers are a special tax regime, within which there are a large number of restrictions. Firstly, they cannot sell goods that are not theirs. But it is not entirely clear what is meant here. For example, you can buy a blouse and sew beads on it – it looks like you made your own product. Secondly, you cannot hire employees under an employment contract, which is also not critical. Thirdly, self-employed workers have a very small annual income limit – only 2.4 million rubles,” the expert said.

Markov added that self-employed workers are now prohibited from engaging in activities that require various brands, for example, from the “Honest Brand”, respectively, shoes, clothes, children’s goods, etc.

“The self-employment regime was created so that individuals could sell goods to each other for small amounts and not register as entrepreneurs. Once the amendments are approved, all these regimes will be mixed together, which is why I think the proposal will not be accepted,” the expert said.

• According to the Federal Tax Service, as of May 10, 2024, the number of SMEs included in the unified register exceeds 6.5 million companies. At the same time, the number of persons applying the special tax regime at the beginning of 2024 amounted to 9.49 million, including 470 thousand individual entrepreneurs.
• The number of small and medium-sized enterprises (excluding those applying a special tax regime) increased by less than 4% over the year, and the number of professional taxpayers of income tax increased by more than 38%.