Ink theory

from Wikipedia, the free encyclopedia

The term Abfärbetheorie also infectious or Durchsäuerungstheorie referred to in the German income tax law , the reclassification of non-commercial income in business income .

General

According to Section 15 (3) No. 1 EStG , an activity carried out by a partnership is viewed as a whole as commercial if only part of the activity is carried out commercially. The purpose of the regulation is to avoid multiple types of income within a single partnership. In this way, taxation should be simplified and trade tax revenue secured.

Even a small amount of commercial income is enough to reclassify all other income as commercial. In 2014, the Federal Fiscal Court ruled in several rulings that the income of a freelance company under civil law that does little commercial activity will not be reclassified as commercial income if the commercial sales exceed a minimum of 3% of the total net sales plus the amount of 24,500 euros per year. The de minimis rule developed by the Federal Fiscal Court is not undisputed.

Consequences of the re-qualification

  • If assets were previously used to generate excess income, taxable business assets are created in the event of a reclassification . The re-qualification thus leads to a tax arrest and thus, in the event of a sale, to a disclosure of the hidden reserves . If z. If, for example, an asset management partnership that has so far only generated income from renting and leasing becomes commercial, profits from the sale of real estate are also taxable outside the speculation period.
  • The company is liable to trade tax on all profits . This trade tax can be offset against the income tax of the partners of the partnership. However, this - depending on the municipal trade tax multiplier - only up to a certain maximum amount.
  • Further disadvantages can be the bookkeeping and accounting obligations and further requirements for traders.

example

The people involved in a freelance partnership generally receive income from self-employed work . However, if one of the shareholders (in addition to his freelance work) achieves commercial sales (e.g. from real estate brokerage) within the framework of the group of persons, all profits of the company are reclassified as commercial income.

See also

Individual evidence

  1. ↑ BFH, judgments of August 27, 2014, Az. VIII R 6/12, full text ; Az. VIII R 16/11, full text ; Az. VIII R 41/11, full text .
  2. ↑ Barbara Freifrau von Lersner: De minimis limit for the non-application of the waste regulation in partially commercially active partnerships in Section 15 (3) No. 1 of the Income Tax Act - no small matter in legal system , DStR 2015, 2817.