Free occupation (Germany)
A professional services or free profession is an independently exercised scientific, artistic, literary, teaching or educational profession . A freelance activity is not a trade under German law and is therefore not subject to trade regulations or trade tax . Legal definitions can be found in the Income Tax Act and in the Partnership Act , which roughly identically define the following professions as liberal professions: doctor , dentist , veterinarian , pharmacist (also a trader), lawyer , notary , patent attorney , engineer , architect , commercial chemist , auditor , sworn accountant , tax consultant , advisory economics and business administration , midwives , massage therapists , physical therapist (physiotherapist) , medical practitioners , journalists , press photographers , interpreters , translators , pilot , scientist , artist , writer , lecturer , teacher and educator .
People who do liberal professions are called freelancers . The content of the liberal professions is generally based on special professional qualifications or creative talent, the personal, responsible and professionally independent provision of services of a higher kind in the interests of the client and the general public.
There are currently around one million freelancers in the Federal Republic of Germany. There is no official or uniform representation of all freelancers. Among other things, there is the Federal Association of Liberal Professions (BFB) for the interests of freelancers at the federal and European level . Many freelance activities in Germany are regulated by so-called professional codes . These and other professional groups are also organized in professional associations or professional bodies .
In terms of tax law, freelance work is not recognized by the responsible tax office solely on the basis of a job title, but also depends on other criteria in individual cases , see the sections Differentiation from commercial activity and the nature of the liberal professions . While professional ethics can also apply to corporations , corporations are always subject to trade tax under tax law.
A distinction must be made between the term “freelancer” and the term “ freelancer ”. The latter relates to the type of employment (as distinct from the employee ), but has nothing to do with whether the activity is commercial or freelance. The term “freelancer”, on the other hand, always refers to self-employed members of certain professions, e.g. B. Architects, doctors and lawyers. Activities that do not belong to the professions listed in the law or are recognized as similar are not self-employed. These include B. the exercise of a trade , the operation of agriculture or forestry and the management of one's own assets.
Freelancers are not subject to trade tax as they do not operate a commercial company, Section 2 of the Trade Tax Act. However, their sales are regularly subject to sales tax (although certain services in human medicine, education and culture, etc. are exempt from sales tax). Freelancers can determine their profit regardless of the amount by means of an income statement and do not have to draw up any commercial balance sheets .
Section 18 of the Income Tax Act generally defines freelance work as an independent academic, artistic, literary, teaching or educational activity. In addition, the regulation contains a list of professions (catalog professions, see introduction), the independent and responsible exercise of which is always freelance.
Scientific, artistic, literary, teaching or educational activity
The law does not contain any further delimitation features, so that the delimitation is based on the case law of the Federal Fiscal Court . The activity of a scientist is directed towards new knowledge according to scientific principles. Artistic activities can also include works with a practical purpose if the work reaches an artistic level. A writing activity does not require any artistic or scientific content. The writing of technical documentation can also be an author's work. The teaching or educational freelancers typically include independent lecturers , educators , teachers (including music teachers), child minders and social pedagogues .
An occupation similar to the catalog occupations can also be freelance. The case law has recognized the similarity to the abovementioned catalog professions for many professional groups. When exercising a similar occupation, however, it must always be checked in each individual case whether the activity is actually comparable to a catalog occupation.
The programming profession shows a typical problem of demarcation. The Federal Fiscal Court has decided that programmers - similar to an engineer - can work as a freelance as long as they do not produce trivial software. The previously decisive separation between system software and application software has been abandoned. Even in the future, not every activity in the field of user software development can be assessed as a freelance activity. Rather, this requires the development of qualified software through a classic engineering approach (planning, construction, monitoring) as well as training that is at least comparable to that of an engineer. Simply exercising the activity without a broadly founded knowledge base is not sufficient for the acceptance of freelance work in the field of "similar" professions. For example B. a taxpayer who does not have a degree from a university and is self-employed in the field of quality assurance, does not show that he has the breadth and depth of the knowledge of a graduate engineer, he is commercially active. Even in-depth knowledge in a part of the specialist course does not meet the requirements of a freelance work. As a justification, the BFH refers to the fact that the persons exercising "comparable professions" had to undertake a longer period of training in order to acquire their deep and broad-based knowledge in accordance with Section 18 (1) sentence 2 EStG.
Similar professions can be:
In the advisory and appraising professions
In the health professions
In the medical professions
In technical and scientific professions
Character of the liberal professions
When exercising a liberal profession, personal work must play a special role compared to the use of capital. However, a member of a liberal profession remains freelance even if he uses the help of professionally trained workers. The prerequisite is that he has a managerial and independent role based on his own specialist knowledge. Representation in the event of temporary absence does not prevent the acceptance of a managerial and independent activity.
Differentiation from commercial activity
Any independent, sustainable and profit- making activity that does not belong to the freelance activities according to the criteria described above and is also not to be assigned to other independent activities (e.g. execution of wills, supervisory board activities), income from agriculture and forestry and private asset management , conversely, belongs to commercial activities.
This applies in particular to sales, which is a common problem in practice: Due to the infection theory, freelance work may cease to exist under tax law if commercial sales are also achieved in some cases (example: veterinary practice group also sells veterinary drugs). The legal consequences can be avoided by generating the commercial sales in a separate company.
Economic importance of the liberal professions
In Germany there are currently around one million freelancers (out of a total of 42 million employees, including 4.5 million self-employed), of which around 906,000 are self-employed. These employ around 2.9 million people and 136,000 trainees (BFB data as of March 1, 2009) and generate around 9% of the gross domestic product . The economic importance is comparable with that of the handicrafts or that of other sectors of the middle class . There is a separate economic policy department for the liberal professions within the Federal Ministry for Economic Affairs and Energy .
Association of freelancers
The usual form of cooperation is the partnership , usually in the form of a civil law partnership (GbR) according to §§ 705 ff. BGB .
The partnership under the PartGG has existed since 1994 . The partnership is a society in which members of the liberal professions come together to pursue their professions. Members of a partnership can only be natural persons . The partnership company (PartG) is liable for its joint activities with its business assets and the private assets of the partners ; liability for errors in the course of professional practice is limited to the person responsible. This is to avoid that z. As doctors in a group practice for possibly. Malpractice a colleague liable, even though they had nothing to do with the operation. The PartG is entered in the partnership register and has legal capacity . The partnership with limited professional liability (PartGmbB) as a special form of the PartG now enables even more extensive liability restrictions.
The traditional name of an association of lawyers (and partly also other freelancers) is a partnership , which can be both a GbR and a partnership.
Another form of cooperation of freelancers provides the cooperative . Service cooperatives in particular offer freelancers a wide range of advantages. Every freelancer remains economically and legally independent and the cooperative works to its members economically. Examples are Datev or the IT service cooperative JARIVA.
A pure office community does not represent a merger.
The remuneration for some freelance activities is set in fee schedules that are enacted as laws or as ordinances of the administrative authority. This is to avoid arbitrariness in accounting, but also ruinous competition among freelancers. Examples are the fee schedule for doctors , the Lawyers 'Remuneration Act and the Tax Advisors' Remuneration Ordinance .
- Svenja Hofert : Practice book for freelancers. Everything you need to know to be successful. 4th, completely revised new edition. Gabal, Offenbach 2012, ISBN 978-3-86936-435-3 .
- Federal Association of Liberal Professions (BFB) , Berlin
- Institute for Liberal Professions at the University of Erlangen-Nuremberg (IFB) , Nuremberg
- German Institute for Small and Medium-Sized Enterprises (DIKMU) , Berlin
- European Center for Liberal Professions (EuZFB) , Cologne
- Freelance job or trade? Short version of the IFB at the BFB (PDF, 8 pages, 179 kB)
- Despite dream jobs on the poverty line. Tagesspiegel , November 22, 2009
- ↑ a b § 18 EStG and § 1 Abs. 2 PartGG. The occupations of tax agent and dentist also listed no longer exist.
- ↑ Federal Association of Liberal Professions: Data and Facts ( Memento from January 31, 2013 in the Internet Archive )
- ^ IHK Magdeburg: Demarcation between trade and freelance work
- ↑ BFH, judgment of May 4, 2004, Az. XI R 9/03, full text .
- ↑ BFH, judgment of June 14, 2007, Az. XI R 11/06, full text .
- ↑ cf. VG Freiburg, judgment of February 11, 2009, Az. 1 K 464/08.
- ↑ BFH, judgment of January 14, 1998, Az. IV B 48/97, full text ( Memento of October 28, 2018 in the Internet Archive ) = BFH / NV 98, 706; FinVerw BB 95, 1886.
- ↑ Employment , destatis.de.
- ↑ Partnership Law .