Artists' social security contribution
The artist's social security contribution serves to finance the artist's social insurance . The artists 'social insurance is financed 50% through contributions from the insured, 20% through a federal grant and 30% through the artists' social security contribution. The levy is to be paid by all companies based in Germany that not only occasionally give orders to independent artists or publicists. It is levied on all fees paid to self-employed artists or publicists in a calendar year in the form of an annually newly determined percentage. The artists' social welfare fund based in Wilhelmshaven is responsible for collecting the fee .
Legal basis
The legal basis for the collection of the artists ' social security contribution are §§ 23 ff. Of the Artists' Social Insurance Act (KSVG). The KSVG is supplemented by various statutory ordinances that substantiate its provisions.
When applying and interpreting the KSVG, the decisions of the social justice system , in particular the rulings of the Federal Social Court, must be observed.
Taxable companies
Typical recyclers
On the one hand, so-called “typical recyclers”, which are listed in Section 24 Paragraph 1 Sentence 1 No. 1 to 9 of the KSVG, are subject to the tax . According to this, entrepreneurs who operate one of the following companies are liable to pay the tax:
- Book, press and other publishers, press agencies (including picture services),
- Theaters (with the exception of film theaters), orchestras, choirs and comparable companies, provided that their purpose is primarily aimed at publicly performing or performing artistic or journalistic works or services,
- Theater, concert and guest performance departments as well as other companies whose main purpose is to provide for the performance or presentation of artistic or journalistic works or services,
- Radio, television,
- Production of recorded image and sound carriers (exclusive reproduction),
- Galleries, art trade,
- Advertising or public relations for third parties,
- Variety and circus companies, museums,
- Training and further education institutions for artistic or journalistic activities.
Self-promoter
According to Section 24 (1) sentence 2 KSVG, the so-called “self-advertisers”, ie. H. Companies that do advertising or public relations and do not only occasionally give orders to independent artists or publicists. This means that almost every company in Germany outside of the “creative industry” is liable to pay taxes. There is an obligation to pay B. usually when the company has a website, flyer, company brochures, business cards or similar designed.
Other (general clause)
Finally, according to the general clause of Section 24 (2) KSVG, companies are also liable to pay taxes that not only occasionally place orders with independent artists or publicists in order to use their works or services for the purposes of their company and to generate income in connection with this use. This applies to companies in which products or packaging are artistically designed.
Amount of the fee
The artist's social tax is levied in the form of a contribution based on a percentage of the assessment base ( Section 23 KSVG). The percentage is redefined annually by an ordinance of the Federal Ministry of Labor. As in the previous two years, the tax rate for 2016 is 5.2%. As the following overview shows, the tax rate since 2000 has been at least 3.8% (2002, 2003) and at most 5.8% (2005). For 2016 the tax rate was 5.2%, in 2017 it was reduced to 4.8% and from January 1, 2018 to 4.2%.
Assessment basis
The assessment basis for the artist's social security contribution is the entire remuneration paid to self-employed artists and publicists in a calendar year ( Section 25 (1) sentence 1 KSVG). According to § 25 Paragraph 2 KSVG, remuneration in this sense is everything that the taxable entrepreneur spends in order to receive or use the work or service, less the sales tax shown separately in an invoice or credit note. This does not apply
- Fees that are paid to collecting societies (e.g. GEMA , VG Wort, etc.) for copyright usage rights, other rights of the author or ancillary copyrights ,
- tax-free expense allowances and the tax-free income mentioned in Section 3 No. 26 of the Income Tax Act.
Who is an artist / publicist?
Artists' social security contribution is only due for payments to self-employed artists and publicists . According to § 2 KSVG, an artist is someone who creates, practices or teaches music, performing or visual arts. A publicist is someone who works as a writer, journalist or similar journalist or teaches journalism.
The concept of art can be understood as broadly as possible. In particular, no special artistic quality is required. For example, the Federal Social Court also regarded Dieter Bohlen's work as a juror for Deutschland sucht den Superstar as artistic and condemned the television broadcaster RTL Television to pay artists' social security contributions in terms of the fees paid.
The so-called "artist catalog" of the artists' social insurance fund provides assistance with the classification as an artistic or journalistic activity.
Reporting and recording obligations
Companies subject to the tax must register for the first time with the artists' social insurance fund using a registration form. They are recorded by the KSK and given a tax number. You then have to report the taxable fees of the previous year no later than March 31 of the following year (so-called annual report, Section 27 (1) sentence 1 KSVG).
The artist's social security fund then sets the amount of the artist's social security contribution and the monthly advance payments to be made and notifies the company in writing of this.
The companies obliged to surrender have to keep ongoing records of the fees that are subject to surrender within the meaning of Section 25 KSVG. It must be possible to verify the occurrence of the reports derived therefrom and the connection with the underlying documents ( § 28 S. 1 and 2 KSVG). The records must be kept for at least five years after the end of the calendar year in which the fees were due (Section 28 sentence 3 KSVG).
Tax audits
Since 2007, the Deutsche Rentenversicherung (DRV) has been checking the proper payment of the artists' social security contribution as part of its social security exams.
With the entry into force of the Artists ' Social Tax Stabilization Act (KSAStabG) on January 1, 2015, the audits were drastically tightened: Companies that are already registered with the Artists' Social Insurance Fund (KSK) and employers with more than 19 employees are now subject to a company audit at least every four years. The other companies are audited every ten years on average. Instead of around 70,000 audits a year so far, around 400,000 company audits are to take place in the future.
The tax audit usually covers the last five years. The audited company has extensive information and submission obligations to the tax auditor ( Section 29 KSVG).
When the result of the tax audit is certain, an audit certificate is issued. If too little artist's social security contribution has been paid, an additional payment plus late payment surcharges must be made. You can object to the decision within one month. Insofar as the objection authority considers the objection to be justified, it cancels the assessment notice. Otherwise it rejects the contradiction. After an unsuccessful objection procedure, you can file a lawsuit at the social court. The period of action is one month from receipt of the notice of objection.
special cases
Payments to companies
Payments to legal entities (e.g. GmbH, UG, AG, eV) are not subject to the tax obligation. With a judgment of August 12, 2010, the Federal Social Court ruled that payments to a KG are also not subject to tax. According to a ruling by the Federal Social Court of July 16, 2014, the same also applies to payments to an OHG.
On the other hand, fees paid to a GbR, sole proprietorship or natural person for artistic or journalistic services or works are subject to tax.
Payments to web designers
According to a ruling by the Federal Social Court on July 7, 2005, web designers are artists. As far as the design of a website is concerned, the client must therefore pay the artist's social security contribution.
If, on the other hand, the contractor works more as a webmaster / web administrator (looking after the site in terms of functionality, topicality, user-friendliness, etc.), no artist's social security contribution is due.
literature
- Jürgensen, Andri: Practical Guide for Artists' Social Contribution , 3rd edition, Kiel 2015.
- Finke / Brachmann / Nordhausen: Artists' Social Insurance Act . Commentary, 4th edition, Munich 2009.
- Frank, Andreas: Artist's social tax: The great unknown in agencies and companies , 6th edition, 2007.
- Kroß, Denis / Sperling, Florian: The artist's social security contribution at media companies , magazine for copyright and media law (ZUM) 2014, issue 3, pp. 210–218.
- Mittelmann, Ursula: Social tax for artists - expansion of tax audits from 1.1.2015 and further changes and developments since 2011 , DStR 2014, pp. 2301–2306.
- Sperling, Florian: Schwarze Schafe , article in the Börsenblatt of October 24, 2013, http://www.boersenblatt.net/642405/ (accessed on: January 15, 2016).
Web links
- www.kuenstlersozialkasse.de : Official website of the Künstlerozialkasse
- www.bmas.de : Information from the Federal Ministry of Labor and Social Affairs
- www.kuenstlersozialabgabe-hilfe.de : Information on the subject of social tax for artists
- www.kskontra.de : Critical examination of the artist's social security contribution
Individual evidence
- ^ Ordinances on artists' social insurance
- ↑ www.kuenstlersozialabgabe-hilfe.de
- ↑ BT print. 11/2979, p. 7 No. 6
- ↑ Annual ordinances on the amount of the artist's social security contribution
- ↑ a b Artistic Social Contribution Ordinance 2016
- ↑ www.kuenstlersozialabgabe-hilfe.de, FAQ No. 4. ( Memento of the original from January 15, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Artists' Social Contribution Ordinance 2017 BGBl. 2016 I p. 1976 .
- ^ Artistic Social Contribution Ordinance 2018 BGBl. 2017 I p. 3056 .
- ^ Spiegel Online, article from November 12, 2007.
- ↑ KSK artist catalog, information publication no. 6. ( Memento of the original from January 15, 2016 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Legal text of the KSAStabG.
- ↑ Press release of the Federal Ministry of Labor of April 30, 2014.
- ↑ Information on tax audits and legal remedies against audit notices (www.kuenstlersozialabgabe-hilfe.de). ( Memento of the original from January 15, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Federal Social Court, judgment of August 12, 2010, Az. B 3 KS 2/09 R.
- ↑ Federal Social Court, judgment of July 16, 2014, Az. B 3 KS 3/13 R.
- ↑ Information on the obligation to pay payments to companies (www.kuenstlersozialabgabe-hilfe.de). ( Memento of the original from January 15, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Social contribution for artists when commissioning web designers (www.kuenstlersozialabgabe-hilfe.de).
