On the legality of the work of an individual with the App Store in the Russian Federation
This article is intended primarily for single programmers who want to try their hand at the market of paid mobile applications. The article does not claim to be the truth of the first instance, therefore any of your comments are extremely welcome.
So, the essence of the article is to understand: is it possible for an individual in the Russian Federation to legally make a profit from the sales of programs on the App Store? Viewing thematic forums with similar questions led to the conclusion: the opinions of people on this subject differ. Some believe that it is possible, others - that such activities will qualify as illegal business activities, because Apple's contract is an agency contract and there is not a word about the author's remuneration, and, as a result, you need to register as an individual entrepreneur (PI).
I decided to clarify this issue with lawyers.
The situation for developers is as follows: the individual is the author of the application (that is, has the exclusive right to the application) and wants to receive a reward by distributing (selling) it through the Apple App Store. The store acts as an agent or commissioner (depending on the country in which the application is purchased) for the implementation and delivery of Licensed applications to end users (end users acquire licenses to use the software). The store allows you to transfer your own End-User License Agreement (if it is not available, use of the application is governed by Apple’s standard end-user license agreement).
')
Next, I will quote the answers of lawyers.
In accordance with Art. 1261 of the Civil Code of the Russian Federation, the copyright for all types of computer programs (including operating systems and software systems), which can be expressed in any language and in any form, including the source text and object code, are protected in the same way as copyright on works of literature.
That is, developing computer programs and realizing them through the resources of Apple, you simply conclude either a license agreement (transfer for use) or an agreement on the alienation of exclusive rights (transfer to ownership) - depends on the amount of rights transferred to the program to the consumer.
The author can realize for money the result of his activity only in the two ways listed above.
Authors are not entrepreneurs. The corresponding position was expressed long ago, in the letter of the Ministry of Finance of May 27, 2005 N 03-05-02-04 / 102. And the systematicity here does not matter. And the agency agreement (and commissions, and orders), according to which the author will be a principal, also does not matter, because non-businessmen may be parties to such an agreement (Articles 971, 990, 1005 of the Civil Code of the Russian Federation).
Register as a PI (or LLC) - you do not need. Moreover, the PI (or LLC) can not be sponsored - Clause 1, Article. 1228 of the Civil Code.
The transfer by the author of at least exceptional, though non-exclusive, although systematically, in a multitude of transactions, with a multiplicity of fees from different buyers, although not systematically, does not constitute entrepreneurial activity.
In accordance with paragraph 1 of Art. 1262 of the Civil Code of the Russian Federation - on request:
The rightholder, during the term of the exclusive right to a computer program or database, may at its discretion register such a program or such database with the federal executive body on intellectual property.
I will also add that information about the author posted on the copy of the work, including electronic, in accordance with Art. 1257 of the Civil Code (see also, for example, the definition of the Supreme Arbitration Court of the Russian Federation of 05.03.2013 No. WAS-1928/13 in case No. 56-12346 / 2012). If there is information about authorship or copyright on copies of the work, the opposite party is already obliged to prove that the rights to the object belong to another person.
Now about taxes. The author must pay 13% of the personal income tax from what came to his account, i.e. Apple does not include commission. The tax base can be reduced by taking into account the professional tax deduction (paragraph 3 of article 221 of the RF Tax Code) on the costs of creating a program only if they can be documented (see the letter of the Treasury dated October 28, 2011 N U-3-3 / 3533 @).
Registration as an IP in the implementation of licenses for programs (games) is not required, you can legally work as an individual and pay a tax of 13% personal income tax of the amount (it is possible to reduce the tax base) received on a bank account.
So, the essence of the article is to understand: is it possible for an individual in the Russian Federation to legally make a profit from the sales of programs on the App Store? Viewing thematic forums with similar questions led to the conclusion: the opinions of people on this subject differ. Some believe that it is possible, others - that such activities will qualify as illegal business activities, because Apple's contract is an agency contract and there is not a word about the author's remuneration, and, as a result, you need to register as an individual entrepreneur (PI).
I decided to clarify this issue with lawyers.
The situation for developers is as follows: the individual is the author of the application (that is, has the exclusive right to the application) and wants to receive a reward by distributing (selling) it through the Apple App Store. The store acts as an agent or commissioner (depending on the country in which the application is purchased) for the implementation and delivery of Licensed applications to end users (end users acquire licenses to use the software). The store allows you to transfer your own End-User License Agreement (if it is not available, use of the application is governed by Apple’s standard end-user license agreement).
')
Next, I will quote the answers of lawyers.
Does the developer need to register as an PI? Or is it enough to be an individual?
In accordance with Art. 1261 of the Civil Code of the Russian Federation, the copyright for all types of computer programs (including operating systems and software systems), which can be expressed in any language and in any form, including the source text and object code, are protected in the same way as copyright on works of literature.
That is, developing computer programs and realizing them through the resources of Apple, you simply conclude either a license agreement (transfer for use) or an agreement on the alienation of exclusive rights (transfer to ownership) - depends on the amount of rights transferred to the program to the consumer.
The author can realize for money the result of his activity only in the two ways listed above.
Authors are not entrepreneurs. The corresponding position was expressed long ago, in the letter of the Ministry of Finance of May 27, 2005 N 03-05-02-04 / 102. And the systematicity here does not matter. And the agency agreement (and commissions, and orders), according to which the author will be a principal, also does not matter, because non-businessmen may be parties to such an agreement (Articles 971, 990, 1005 of the Civil Code of the Russian Federation).
Register as a PI (or LLC) - you do not need. Moreover, the PI (or LLC) can not be sponsored - Clause 1, Article. 1228 of the Civil Code.
The transfer by the author of at least exceptional, though non-exclusive, although systematically, in a multitude of transactions, with a multiplicity of fees from different buyers, although not systematically, does not constitute entrepreneurial activity.
Do I need a state registration of the developed program?
In accordance with paragraph 1 of Art. 1262 of the Civil Code of the Russian Federation - on request:
The rightholder, during the term of the exclusive right to a computer program or database, may at its discretion register such a program or such database with the federal executive body on intellectual property.
I will also add that information about the author posted on the copy of the work, including electronic, in accordance with Art. 1257 of the Civil Code (see also, for example, the definition of the Supreme Arbitration Court of the Russian Federation of 05.03.2013 No. WAS-1928/13 in case No. 56-12346 / 2012). If there is information about authorship or copyright on copies of the work, the opposite party is already obliged to prove that the rights to the object belong to another person.
Taxes
Now about taxes. The author must pay 13% of the personal income tax from what came to his account, i.e. Apple does not include commission. The tax base can be reduced by taking into account the professional tax deduction (paragraph 3 of article 221 of the RF Tax Code) on the costs of creating a program only if they can be documented (see the letter of the Treasury dated October 28, 2011 N U-3-3 / 3533 @).
Conclusion
Registration as an IP in the implementation of licenses for programs (games) is not required, you can legally work as an individual and pay a tax of 13% personal income tax of the amount (it is possible to reduce the tax base) received on a bank account.
Source: https://habr.com/ru/post/222537/
All Articles