Domestic study

from Wikipedia, the free encyclopedia

The ( domestic ) study ( English study (room) ; furthermore also home office or home office for one equipped with computer and communication technology work in their own home) is in a flat a room , that of workers for the purpose of homework or telework or Self-employed is used for the purpose of practicing a profession . In the artistic and creative area, such a separate room is also known as a studio or studio . Historically, until the introduction of manufactories , apartments and workshops usually formed a unit and could not be clearly separated.

General

The study is subject to both labor and tax law . While labor law deals with the major interest of the employer in ensuring that the employee performs his work wholly or partially (also) at home, tax law considers the business expenses or business expenses incurred through the home office . Both areas of law assume that a study must be in an apartment and serve professional purposes, but differ in the consequences of this legal question .

Employment Law

By outsourcing work to the employee's private sphere , the employer generally saves administrative costs for setting up and maintaining workplaces in the company, but the employer has the resources necessary for the employee to perform the work ( factory and office equipment such as office furniture ) and To provide work equipment ( office supplies or telecommunication systems ). This applies in particular to the rooms in which the employee is supposed to perform his work. Then the legal question arises as to whether the employee can demand reimbursement of expenses from the employer in accordance with Section 670 of the German Civil Code (BGB) for office furnishings if this was procured by the employee. Also, during the period in which the employee performs work in the home office, the living space is not available for private use. In the case, the Federal Labor Court (BAG) denied the claim for reimbursement of expenses. However, if the employer's interest outweighs so much that the employee's interest can be neglected, reimbursement of expenses is permitted. In the case of an employment relationship, specific agreements are therefore required in the collective bargaining agreement , works agreement or employment contract on the distribution of costs for the study.

The employee can also have an interest in a home office. The establishment of such a workstation has the consequence that the workers working paths and thus travel time , and travel cost saving. In addition, it is largely beyond the personal control of superiors . The resulting less external control opens up scope for more independent work design and a more individual design of the work environment . In addition, the office makes childcare or home care easier for the employee . Accidents while working from home or teleworking are occupational accidents if they occur in the home office.

Tax law

What is to be understood as a home office for tax purposes is not defined by law, so that largely the case law of the Federal Fiscal Court (BFH) must be used. After that, the home study is a room that

  • is integrated into the domestic sphere according to its function , equipment and location ,
  • primarily serves to complete intellectual, written, administrative or organizational work and
  • is used almost exclusively for operational or professional purposes.
  • Rooms with atypical furnishings and functions are not considered as study, regardless of whether they are integrated into the domestic sphere according to their location; Examples are workshop , medical practice , law firm , treatment room. A study is not "at home",
  • if it is rented in another building.
  • if it is open to the public or non-family employees are employed.

A study is therefore a room in which an activity is carried out that is related to a type of taxable income . With regard to the determination of the business expenses ( Section 4 (5) No. 6b EStG ) or income-related expenses ( Section 9 (5) EStG), restrictions apply to the home office compared to other professionally used rooms (study).

Legal position as of January 1, 2007

As of January 1, 2007, the deduction of home office expenses was limited. There was only “full deduction” or “no deduction”. The Federal Constitutional Court did not consider this new regulation to be justified (deviation from the objective net principle ). According to the resolution, the expenses for a study must be tax-deductible even if it is not the focus of the professional and operational activity, but no other job is available to the taxpayer. The legislature was requested to remedy the unconstitutional situation with retroactive effect from January 1, 2007.

Legal position since 2010

With the Annual Tax Act 2010, the home office was declared deductible again under certain conditions. Up to 1250 euros can be claimed in the tax return "if no other job is available for the operational or professional activity". This change in the law was triggered by a lawsuit brought by a couple of teachers. For the professional group “teachers” it can be assumed that the above condition is met. The same applies to other professional groups, e.g. B. Field workers without a desk in a company office.

The deduction limit of 1250 euros does not apply if a rented room is used outside of one's own apartment (see above "non-domestic office"). In this case, all costs actually incurred can be deducted. Such a rental agreement must actually be "lived", which can be assumed, especially if there is a written rental agreement and regular cashless payment of the rent.

Center of professional and operational activity

According to Section 4, Paragraph 5, No. 6b in conjunction with Section 9, Paragraph 5 of the Income Tax Act 2007, unlimited costs can be deducted if the study is the focus of all operational and professional activities. This is the case if the work that is essential and formative for the job or the company is performed in the home office. The duration of use of the study is only indicative.

If the professional or operational activity takes place both in the office and outside the home, the qualitative focus of the overall activity must be determined. It does not matter (any longer) whether another permanent job is available, whether the largest part of the income is generated in the study or whether the “business ideas” are developed in the study or the entrepreneurial decisions are made. It is crucial that the activities in the office shape the entire professional or operational activity.

If several activities are carried out, the center of the entire activity must be determined according to the following criteria:

First, the focus is determined for each individual activity and then, on this basis, the qualitative focus of the overall activity. The determining factor is the focus of the main activity. If full-time employment is carried out, this is relevant as the main activity for determining the focus. When exercising several self-employed activities or part-time employment, further criteria must be checked based on which the focus of the overall activity is to be determined, in particular the value, income and time expenditure of the individual activities.

If several activities are carried out next to each other (without a defining main activity) in the study, the following principles apply:

  • If the study is the qualitative focus of all activities, it is also the focus of the overall activity.
  • If the focus of all activities is outside the study, a deduction is no longer possible.
  • If the qualitative focus of an activity is in the office, but outside of it for others, an individual examination must be carried out.

If you are employed at a teleworking place in your own office, it depends on whether the teleworking is only done in your home office or alternately at home and in the company. If only teleworking is done in the home office, this forms the focus of the entire professional activity and the costs are fully deductible as income-related expenses. If the activity is carried out alternately at the company workplace and in the home office, the time division is an essential indicator. If the study is used three days a week, the qualitative focus of the activity will also be here.

Not a home office

Expenses for non-domestic work rooms and other rooms can in principle be assessed for tax purposes. Under certain conditions, a room that is in the same house can be used as an outside office if it is B. is not directly connected to the apartment and another rental agreement has been concluded for the office. The internal connection between the study and the living rooms in the same building is broken if the study can be reached via a traffic area that is accessible to the general public and also used by other people.

Furnishing the study

If the tax office refuses to have a home office, this does not affect all costs. Because only the following aspects count as "expenses for a home office" and "costs of equipment":

Work equipment used professionally or operationally must be recognized by the tax office as business expenses or business expenses , even if they are used in private rooms. This includes expenses for:

Web links

literature

  • BMF : Income tax treatment of expenses for a home office in accordance with Section 4, Paragraph 5, Clause 1, No. 6b, Section 9, Paragraph 5 and Section 10, Paragraph 1, No. 7 of the Income Tax Act; New regulation by the Tax Amendment Act 2007 of July 19, 2006 . BMF letter of April 3, 2007. BMF, BStBl I, 2007, 442 ( PDF; 64.9 KB ( Memento of December 27, 2008 in the Internet Archive )).
  • BMF: Income tax treatment of expenses for a home office according to § 4 paragraph 5 sentence 1 number 6b, § 9 paragraph 5 and § 10 paragraph 1 number 7 EStG. BMF letter of October 6, 2017 ( PDF; 101.6 KB ) ( website ).

Individual evidence

  1. ↑ Home office, home office, that in duden.de; accessed on April 15, 2020
  2. ^ BAG, judgment of April 12, 2011, Az .: 9 AZR 14/10
  3. ^ BAG, judgment of October 14, 2003, Az .: 9 AZR 657/02
  4. ↑ BAGE 124, 210 = BAG, judgment of October 16, 2007, Az .: 9 AZR 170/07 - Rn. 28
  5. ^ BAG, judgment of April 12, 2011, Az .: 9 AZR 14/10
  6. ↑ Thomas Pfeiffer / Josef Sauer, Arbeitsschutz von AZ , 2013, p. 66
  7. ↑ Federal Constitutional Court: press release of July 29, 2010
  8. ↑ Guiding principle for the decision of the Second Senate of July 6, 2010 - 2 BvL 13/09 - To take into account the expenses for a home office in income tax law. . bundesverfassungsgericht.de. Retrieved May 19, 2012.
  9. ↑ BFH, judgment of November 13, 2002
  10. ↑ BFH, judgment of June 26, 2003
  11. ↑ BFH, judgment of December 16, 2004
  12. ↑ BFH, judgment of October 13, 2003
  13. ↑ BFH, judgment of May 23, 2006
  14. ↑ Difference between study and work equipment. Retrieved April 24, 2017 .