Unemployment benefit II / social benefit regulation

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Basic data
Title: Ordinance on calculating
income and
disregarding
income and assets
for unemployment benefit II / social benefits
Short title: Unemployment benefit II / social benefit regulation
Abbreviation: Alg II-V
Type: Federal Ordinance
Scope: Federal Republic of Germany
Legal matter: Social law
References : 860-2-9
Original version from: October 20, 2004
( BGBl. I p. 2622 )
Entry into force on: January 1, 2005
Last revision from: December 17, 2007
( Federal Law Gazette I p. 2942 )
Entry into force of the
new version on: 		January 1, 2008
Last change by: Art. 1 VO from May 28, 2020
( Federal Law Gazette I, p. 1206 )
Effective date of the
last change: 		March 1, 2020
(Art. 2 of May 28, 2020)
Please note the note on the applicable legal version.

The Unemployment Benefit II / Social Benefit Ordinance regulates in the area of SGB ​​II ( Unemployment Benefit II ) when and how the applicant's income and assets are credited in detail ( income adjustment ) and thus indirectly how neediness is determined.

The basis of authorization is in Section 13 (1) SGB II, the ordinance is particularly important for the application of Sections 11 and 12 SGB II.

structure

§ 1 Income not to be considered as income

In addition to Section 11a of Book II of the Social Code, this section determines income that is not to be considered as income.

These include:

  • Care allowance
  • the foreign use surcharge and the performance surcharge
  • Bridging allowance
  • Home Ownership
  • Child benefit , provided the child does not live in the household and the amount can be shown to have been passed on to the child
  • Income of children who receive social allowance, provided it does not exceed the amount of 100 euros
  • Donations to underage children on the occasion of communion , confirmation and youth consecration
  • Injury pension , insofar as it is paid due to work for the NVA of the GDR , up to the amount of the corresponding basic pension according to the Federal Pension Act .
  • Meals during an inpatient hospital stay, imprisonment, or in similar cases that do not correspond to any of the types of income specified in the regulation
  • In the case of trainees, the travel costs to the training facility, provided they are not already covered by Section 11b (2) sentence 1 SGB II. When receiving student loans , a flat rate of 20% is taken into account.

If gainfully employed people live in a household with the beneficiary, an allowance of double the standard rate plus the proportional costs of accommodation applies to them . If the income exceeds this allowance, half of the income exceeding the allowance is offset against the needs of the beneficiary.

If students who have not yet reached the age of 25 have a holiday job that does not exceed four weeks a year, the income from this is not taken into account, provided it does not exceed 1200 euros per year.

A lump-sum allowance of 200 euros applies to employable beneficiaries who take part in the Federal Voluntary Service or the International Youth Voluntary Service . However, if the deductible amounts according to Section 11b SGB II are higher than 140 euros, an allowance of 60 euros applies instead in addition to the existing tax exemptions. When income from federal voluntary service and gainful employment or voluntary work come together, there is no tax exemption, here only the tax exemptions within the scope of income adjustment are relevant. However, according to a judgment by the Federal Social Court, this does not apply if this income is less than 100 euros, so that not even the basic tax allowance can be used; in this case, an additional allowance for the income from the federal voluntary service is to be granted, so that a total of 200 euros remains free of credit.

Finally, a de minimis limit of € 10 is defined. If the income is below this amount, it will not be taken into account. This is to prevent that even with small income, such as interest income in the cent range, a complicated offsetting has to be made.

§ 2 Calculation of the income from employment

Section 2 (2) of Alg II-V used to regulate the inflow principle of SGB ​​II . However, the paragraph has since been dropped because the inflow principle is now regulated directly in SGB II. ( Section 11 (2) SGB II)

Paragraph 3 regulates the point in time when monthly income is credited. § 2 is also applicable in all other cases according to § 4.

If the employer provides full board, this is taken into account as daily income of 1 percent of the standard rate. If only partial catering is provided, 20 percent is accounted for by breakfast and 40 percent each for lunch and dinner. Other income (e.g. a monthly ticket for public transport) is also taken into account as income based on its market value.

§ 3 Calculation of the income from self-employed work, business or agriculture and forestry

This section regulates the crediting of income from self-employed work. Since January 1, 2012, the benefit for child day care according to Section 23 of Book VIII of the Social Code also counts as income from independent work.

This is based on the operating income, i.e. all funds actually received from independent work. All necessary expenses are deducted from this, except for the amounts that are already covered by Section 11b SGB II. However, if expenditure is disproportionate to income, or if it is otherwise wasteful or unnecessary, it will not be taken into account. If it can be assumed that the income is higher than stated by the applicant, a fictitious income can also be used.

A motor vehicle that is predominantly (ie more than 50 percent) used operationally is taken into account as an expense with its actual costs. If the vehicle is also used privately, EUR 0.10 must be deducted from the expenses for each privately driven kilometer. If business trips are made with a predominantly privately used vehicle, this can be taken into account as an expense at 0.10 euros per kilometer, provided that the service recipient does not claim higher fuel costs.

The annual income can also be used as the basis for income instead of the income accruing during the approval period, provided the type of business requires it, e.g. B. at seasonal businesses . This is to prevent the self-employed from repeatedly applying for benefits only for the period in which little or no income is generated.

§ 4 Calculation of the income in other cases

In other cases, Section 2 applies accordingly.

§ 5 Limitation of deductible expenses

Loss compensation between different types of income (so-called vertical loss compensation) is not permitted. In principle, a loss may only be offset against the amount of the income from the same type of income.

Horizontal loss compensation is also inadmissible according to a ruling by the Federal Social Court.

§ 5a Amounts for checking the need for assistance

This section defines some credit rules related to education and participation benefits .

According to this, an amount of three euros per month must be taken into account for school trips. In the case of school trips, the costs of the class trip are spread over the next six months after submitting the application. If children take part in lunch together, an own contribution of one euro is taken into account.

§ 6 Lump sums for amounts to be deducted from income

Section 6 sets lump sums for theitemsto be deducted according to Section 11b (1) No. 3 and No. 5 SGB II. These are the insurance flat rate as well as the flat rate for the distance and the flat rate for additional meals for the expenses associated with generating the income. In the case of income from gainful employment, these lump sums are replaced by the basic tax allowance according to Section 11b (2) SGB II in the amount of EUR 100.

Insurance flat rate

According to paragraph 1 number 1, a flat rate of 30 euros is to be deducted from the income of adults for private insurance within the meaning of Section 11b paragraph 1 sentence 1 number 3 SGB ​​II . The lump sum can only be claimed for minors if a corresponding insurance has actually been taken out. The assessment of whether the insurance of a minor is adequate in terms of reason and amount must always be made on a case-by-case basis; This was denied for the additional student insurance subsidized by the state of Baden-Württemberg in the amount of 1 euro per year.

In addition, costs for statutory insurance can be deducted separately. These include B. the costs of private health insurance for people who are not subject to statutory health insurance, as well as the costs of motor vehicle liability insurance if the motor vehicle is absolutely necessary for gainful employment. Not deductible, although required by law, are the costs for dog liability insurance for dangerous dogs as defined by state law.

Advertising expenses

The following are to be deducted as income-related expenses in accordance with Section 11b (2) sentence 1 number 5 SGB II:

  • Distance flat rate when using a vehicle of 0.20 EUR for each distance kilometer. The travel costs are capped at the cost of reasonable public transport.

The option of deducting a flat-rate fee for advertising expenses of € 15.33 no longer applies as of August 1, 2016. However, it is still possible to deduct the actual costs as long as they can be proven.

The Hessian State Social Court decided that it is sufficient if the expenditure is related to income. The expenses must be necessary . They are, if they are conditioned by the generation of income and if the reason and the amount arise with sensible economic management.

In addition to trips to and from work, this can also include expenses for “car maintenance and operation”; also its financing costs, which - in interim proceedings - can even exceptionally include repayment.

In a decision from 2005, the Saxon State Social Court recognized expenses for vehicle tax, TÜV as well as repair and maintenance, but deducted 20% of this for private use. Tires recognize it in principle, but not annually, TÜV re-inspections do not consider it necessary.

The State Social Court of Baden-Württemberg does not allow car loans to be deducted.

Additional expenses for meals

In accordance with the additional meal allowances under income tax law, Paragraph 3 determines a flat rate for the additional meal expenses of citizens who earn income from work for which they travel more than 12 hours a calendar day and who receive additional services in accordance with SGB II. However, the amount of the flat rate is only around a quarter of the rates in income tax law.

As in income tax law, this lump sum is not used for basic meals - these costs should already be covered by the standard rate of unemployment benefit 2 - but to cover additional meal costs that arise from the trip because it is not possible to work in one's own household during its duration ( because, for example, cost-saving storage in a refrigerator is not possible when traveling).

The Federal Social Court ruled in December 2012 that the amount of this social law additional meal allowance is not sufficient. The court therefore allowed citizens who receive benefits according to SGB II to claim additional expenses for meals above the social law lump sum up to the amount of the income tax lump sum if they can prove the additional expenses.

§ 7 Assets not to be taken into account

Assets that are required to take up or maintain gainful employment or vocational training are not taken into account.

In addition, the same rules for crediting assets apply to people who live in a household with the beneficiary as to beneficiaries.

§ 8 Value of the property

In principle, assets are to be taken into account according to their market value - regardless of any other tax regulations.

Works of art belonging to business assets that are not required to continue gainful employment are accordingly, according to a judgment of the Federal Social Court of November 2006, to be assessed with their market value reducing their market value (Section 12 (4) sentence 1 SGB II, Section 5 Alg II-V old version. ).

§ 9 Transitional Provision

The unemployment benefit II / social benefit regulation valid until December 31, 2007 saw in § 2a Alg II-V a. F. proposes a different credit rule for self-employed. The decisive factor here was not the operating income , but the profit under income tax law. This old rule continued to apply to grant periods beginning before December 31, 2007. If only a preliminary decision according to § 40 SGB II i. V. m. § 328 SGB III has been made, the previous law is only to be applied in the final decision for the profit that was made up to December 31, 2007.

§ 10 Entry into force, expiry

The ordinance came into force on January 1, 2008.

Web links

Individual evidence

  1. ^ SGB ​​II, §11: Income to be taken into account - Federal Employment Agency. Retrieved March 22, 2019 .
  2. ↑ BSG, July 26, 2016, AZ B 4 AS 54/15 R
  3. ↑ BSG, February 17, 2016, AZ B 4 AS 17/15 R
  4. ↑ BSG, December 8, 2016, AZ B 4 AS 59/15 R
  5. ↑ BSG, February 8, 2017, AZ B 14 AS 10/16 R
  6. ↑ Hessisches Landessozialgericht, decision of July 12, 2006, Az .: L 9 AS 69/06 ER Section 29 with reference to Eicher / Spellbrink, SGB II, Comment Rn. 70.
  7. ↑ Federal Social Court of November 29, 1989, Az. 7 RAr 76/88.
  8. ↑ Hessisches Landessozialgericht, decision of July 12, 2006, Az .: L 9 AS 69/06 ER Section 30
  9. ↑ Hessian Regional Social Court, decision of July 12, 2006, Az .: L 9 AS 69/06 ER sections 31 and 32.
  10. ^ Sächsisches Landessozialgericht, decision of September 15, 2005, Az .: L 3 B 44/05 AS-ER, section 34.
  11. ↑ Landessozialgericht Baden-Württemberg, decision of April 16, 2007, Az.L 13 AS 4770/06 Section 6
  12. ↑ Federal Social Court Kassel , Az. B 4 AS 27/12 R; Website Sozialverband VDK Deutschland eV ( memo from January 5, 2014 in the Internet Archive ), accessed on November 19, 2013.
  13. ↑ BSG - judgment of November 23, 2006 - Az. B 11b AS 3/05 R