Intention to make a profit
Profit- making is the goal of making a profit with a company . The term is used in private and tax law . It is important for the status of a merchant in German commercial law , the concept of trade and for the taxation of income .
An indication of the existence of a profit-making intention is a business management in which the business is suitable and intended to generate profit in the long term according to its nature and the type of its management . This requires a long-term assessment looking to the future, for which the conditions of a period that has already passed can provide important clues.
Private law
In private law , the intention to make a profit is one of the criteria for the existence of a trade . Accordingly, trade is any, independent, externally recognizable activity that is carried out according to plan, for a certain period and for the purpose of making a profit and is not a free profession .
Under civil law , the element of the offense for the purpose of making a profit means the intention to generate income that goes beyond pure cost recovery . However, it does not matter here whether a profit was ultimately made. The term “intention” makes it clear that it does not matter whether this goal is actually achieved. Temporary losses do not change this either.
In civil law, however, the element of profit-making is controversial. In the more recent literature, therefore, the characteristic of making a profit is questioned and denied by the now prevailing opinion on the grounds that this should be regarded as purely internal. The legal revision course Alpmann Schmidt takes the view that an intention to make a profit is not necessary for the concept of trade. Rather, the dissenting opinion is represented here that it should only be checked whether there is an offering and remunerated activity on the market. Karsten Schmidt and Claus-Wilhelm Canaris , for example , focus on the aspect of the supplying activity on the market . The company is free to decide whether it wants to make a profit or not. However, this could not lead to an exemption from the special right of merchants. The Federal Court of Justice has approached this in more recent decisions on the Consumer Credit Act and entrepreneurship according to Section 14 of the German Civil Code .
Tax law
The intention to make a profit is one of the criteria for the existence of profit income in tax law. The intention to make a profit is an inner fact that must be determined from objective circumstances and circumstances. The Grand Senate of the Federal Fiscal Court takes the view that the intention to make a profit represents the pursuit of increasing business assets . The Federal Fiscal Court has thus also confirmed that the period-related definition of profit in Section 4 (1) of the Income Tax Act applies to the intention to make a profit .
When determining whether there is an intention to make a profit, the total profit achieved by the taxpayer (total operating result from establishment to termination) and not individual results for the period should be taken into account. Here, capital gains are only to be taken into account if they are taxable. According to the unequivocal wording of the law, the intention to make a profit can be a secondary purpose of the activity. It is also irrelevant whether profits are actually made in individual cases. However, there is no income from business operations if the taxpayer only tries to cover his own costs with his income .
Intention to make a profit in the presence of losses
Temporary losses do not change anything in terms of the general intention to make a profit.
In the case of longer periods of loss , for the lack of an intention to make a profit, it must be possible to establish from further evidence that the taxpayer only pursues the activity for personal reasons and inclinations related to his lifestyle.
Failure to react to high losses that have already occurred and the unchanged retention of a loss-making business concept are weighty evidence of a lack of profit-making intent. On the other hand, restructuring measures as a reaction to a lack of profits can be a weighty indicator of the existence of an intention to make a profit - even if they do not lead to success. It is sufficient if, based on the knowledge horizon at that time, from the point of view of an economically sensible business owner, there was a sufficient probability that they would lead to profitability within a foreseeable period of time.
Hobby
There is also no intention to make a profit if the activity actually originates only in the personal inclinations of the taxpayer. With such a hobby, however, the profits made would not be taxable.
literature
- Zenthöfer, Schulz zur Wiesche: income tax (= blue series ). 10th edition. Schäffer-Poeschel-Verlag, Stuttgart 2009, ISBN 978-3-7910-2826-2 .
- Rainer Wörlen: Commercial law with company law (= learning in dialogue ). 9th edition. Carl Heymanns Verlag, 2008, ISBN 978-3-452-26795-5 .
Individual evidence
- ↑ BFH, judgment of May 5, 1988, BStBl. II p. 778
- ↑ Rainer Wörlen , Commercial Law and Corporate Law , 2008, margin no. 10, p. 6.
- ↑ Klaus Spangemacher, Commercial and Corporate Law , 2008, p. 24.
- ↑ Rainer Wörlen, Commercial Law with Company Law , 2008, margin no. 15, p. 8.
- ↑ Klaus Spangemacher, Commercial and Corporate Law , 2008, p. 25.
- ↑ Schmidt, § 9 Paragraph 4 2d; Cannaris, Section 2 Paragraph 1 2b, cf. Alpmann Schmidt , HR. P. 4.
- ^ BGH, judgment of March 29, 2006 , Az. VIII ZR 173/05, full text.
- ↑ a b Zenthöfer / Schulz zur Wiesche, income tax (blue row), p. 461
- ↑ BFH, judgment of June 25, 1984, Federal Tax Gazette. II 1984, p. 751
- ↑ BFH, judgment of May 5, 1988, BStBl. II 1988, p. 778.
- ↑ BFH, judgment of June 25, 1984, Federal Tax Gazette. II 1984, p. 751.
- ↑ BFH, judgment of August 22, 1984, Federal Tax Gazette. II 1985, p. 61
- ↑ BFH, judgment of November 19, 1985, BStBl. 1986 II, p. 289
- ↑ BFH, judgment of July 21, 2004, Federal Tax Gazette. II, p. 1063
