Passing item

A transitory item is a sales tax term that is also used in bookkeeping . According to the legal definition of Section 10 (1) Sentence 5 UStG , these are "amounts that the entrepreneur collects and spends in the name and for the account of someone else ", so that these amounts are only temporarily collected or disbursed and the company is therefore only a trustee acts for the amount.

The result is that amounts disbursed as transitory items do not belong to the taxable fee ( § 10 UStG). This means that the original biller may have to levy sales tax on his service, but not the payer business.

Disbursed funds

In the case of disbursed funds, there is a transitory item only if the provider ( biller ) has no claim against the entrepreneur himself, but only directly against the payer, so that there is a direct legal relationship between the provider and the payer. Another prerequisite is that the service provider issues an invoice to the debtor and not to the entrepreneur as the invoice recipient. To a certain extent, the entrepreneur is merely putting forward money as an outlay for his customer, the debtor, within the framework of the contractual relationship that exists between the two. The debtor is then regularly obliged to reimburse the contractor for the disbursed monies ( § 670 BGB: "If the agent incurs expenses for the purpose of executing the order that he may consider necessary under the circumstances, the client is obliged to compensate").

A practically frequent case of expenses that remain tax-free as transitory items are court or bailiff costs incurred by lawyers for their clients . Here, on the cost accounts of the court / bailiff, there is an express note that “the applicant is liable for the costs”, i.e. the client ( Section 22 (1) GKG). In the legal profession, therefore, only those expenses that are measured according to the statutory fee schedule are regularly represented. This is different accordingly with other costs incurred to fulfill the order, such as subcontracting to other lawyers, residents' registration information obtained from the lawyer or file inspections requested by the lawyer. In this case, the lawyer himself is initially the client and invoice recipient of the service, so that he in turn includes the costs disbursed by him in his invoice as expenses - and thus part of the taxable remuneration - and has to levy sales tax thereon, since the client has to compensate in the framework is committed to the client relationship.

Insofar as the entrepreneur himself is entitled to deduct input tax, he must ensure that he only includes the net amount he has expended in the invoice and only levies sales tax on this in order to avoid accidentally double sales tax at the expense of the customer. In the case of transitory items, however, this risk does not exist, as the expenses are always passed on to the customer in the exact amount as actually paid by the entrepreneur; an input tax deduction by the entrepreneur is not possible here, since he is not the invoice recipient. If need be, the recipient can, insofar as he is entitled to deduct input tax, assert such a deduction.

Monies received

In the case of funds received, it is a prerequisite that there is a direct legal relationship between the provider and recipient. Only after the entrepreneur has received the money is there an obligation to pay it to the recipient. This results from the underlying contractual relationship. Thus, for a transit item to exist , it is a prerequisite that there is a direct legal relationship between the supplier and the recipient. A purely economic approach is never decisive.

Consequences for determining the profit

In terms of income tax, the transitory item is a business income or business expense that is received and spent in the name and for the account of someone else ( Section 4 (3) sentence 2 EStG). If the profit is determined according to the income-surplus-account , transitory items are not considered as operating expenses or income ( Section 4 (3) sentence 2 EStG). Accounting companies must activate or passivate transitory items .

Accounting

In the balance sheet , transitory items are those balance sheet items that appear with the same amounts on both sides of the balance sheet ( assets and liabilities ) and whose association is made recognizable either by the same name or by other references. Often it is the accounting of items held in trust that have been received for third parties and are to be passed on unchanged. The booking of transitory items increases the balance sheet total .

Individual evidence

1. ↑ ^{a b} Demuth, Björn in: Anwaltsrecht I, 4th edition, Boorberg Verlag, Stuttgart 2008, Chapter 5 Rn. 70 (p. 222)
2. ↑ BFH, judgment v. August 24, 1967, Az. V 239/64
3. ^ BGH, judgment of April 6, 2011, Az .: IV ZR 232/08 ; following the decision of the BFH
4. ^ BGH, judgment of April 6, 2011, Az .: IV ZR 232/08, Rn 9 ff.
5. ↑ Vorb. 7 Abs. 1 S. 2 VV RVG: ( Memento of the original of October 17, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. "Unless otherwise stipulated below, the lawyer can demand reimbursement of the expenses incurred (Section 675 in conjunction with Section 670 BGB)." (Status: October 11, 2013) 
6. ↑ Sales tax application decree (UStAE) of the BMF, there No. 10.4 para. 1 p. 3 , (link to the access page provided by the BMF, last accessed on October 11, 2013)
7. ↑ Dagobert Soergel / Joachim Fudickar, On the structure of the business balance sheet , 1971, p. 96