Usage fee

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In the economy, usage fee is the payment for the permitted use of objects or rights or if a right of use does not or no longer exist, but the payment for the free use of an object or right is equitable .

General

Usage fee is the generic term for all fees from contractual use and lease agreements such as rental agreements , lease agreements , leasing , franchising , real rights of use ( easements ) or commercial property rights such as copyrights , patents , licenses , concessions , utility models , trademarks or trademarks . The loan agreement is also regarded as a transfer of use, because the lender leaves the capital to the borrower . With the transfer of use, the owner grants the beneficial owner the right to use an object and receives a usage fee in return .

The owner does not give up his right of ownership , but grants the beneficial owner the right to use the objects for the duration of the continuing obligation . Depending on the contract, the usage fee is called rent (rent), lease (rent), leasing, franchise or patent fee. The usage fee from capital is called either credit interest ( debit interest ) or credit interest . If the contractual transfer of use ends without the previous beneficial owner giving up the use, the owner is entitled to compensation for use within the framework of the equitable framework .

detection

Using the example of a motor vehicle , the determination of the usage fee is to be understood. With the usage fee (usage compensation), the seller of a car receives compensation for the value of the kilometers driven from the buyer in the event that the purchase contract is reversed . The gross purchase price, the expected total mileage and the kilometers actually driven are decisive. The following formula can be used to determine the user fee:

.

What is important is the effort saved by the user through free use , while the decrease in value of the vehicle (age-related wear and tear ) is not taken into account. The utility is to be replaced, but not the depreciation of the vehicle. In addition, it is irrelevant whether the kilometers were driven with a new or old vehicle or whether the expected total mileage was already exceeded. The residual value of the vehicle is also not included in the calculation of the fee.

Individual areas of law

User fees play a role above all in the legal areas of civil law , tenancy law or family law .

civil right

In the law of damages , the injuring party has to compensate for the benefits of use derived from the use of an object in the form of a usage fee. This usage fee occurs above all when withdrawing from sales contracts , if the buyer has already achieved free benefits with the object of purchase. The Federal Court of Justice (BGH) made it clear in September 2009 that a car dealer is entitled to compensation in use when a purchase contract is reversed in accordance with Section 346 (1) BGB . A decision by the European Court of Justice (ECJ) regarding the Consumer Goods Directive does not conflict with this principle. This decision is justified by recital 15 of the Consumer Goods Directive, which expressly allows the use of the non-conforming goods to be taken into account in the event that the contract is terminated. In this case, the buyer is obliged to surrender any benefits to the seller or to pay compensation for this in accordance with Section 346 (2) BGB.

Tenancy law

Housing cooperatives do not conclude rental agreements with their members / tenants, but rather long-term usage agreements, so that the rent is referred to here as a usage fee. The cooperative usage relationship is essentially a rental agreement. A usage fee is also payable in cases in which, for example, a rental contract has been properly terminated, but the tenant has not yet returned the rental property on the vacancy date and continues to live there rent-free. If the tenant does not return the rented property after the end of the tenancy, the landlord can demand the originally agreed rent as compensation for use for the duration of the withholding in accordance with Section 546a (1) BGB. The usage fee is due because the landlord cannot otherwise rent this rental property until it is finally vacated. The usage fee is intended to replace the rent loss suffered by the landlord .

Family law

In family law , a user fee is payable when the spouses separate and alone a spouse after assignment of an apartment or voluntary exodus of the other partner in the joint or sole ownership standing apartment use and payment of equitable ( § 1361b , para. 3 BGB). It is then obvious that the spouse remaining in the house pays a usage fee to the other spouse.

Tax law

In tax law , a usage fee is to be paid if the employer gives the employee a company car for private use. Then this private use must be taxed as part of the labor income . In this case, the employee has to make a payment to the employer (or on his instructions to a third party) in order to fulfill an obligation of the employer for the "off-duty use" of a company car . According to Section 6 Paragraph 1 No. 4 Sentence 2 EStG , the value in use for private use of a motor vehicle that is used more than 50% for business purposes is 1% of the domestic list price for each calendar month at the time of first registration (plus the costs for Special equipment including sales tax) as an expense ( monetary benefit ). The usage fee is a

  • in an employment contract or on the basis of another legal basis under labor or service law, a flat - rate amount that is independent of use (e.g. monthly flat - rate ) or
  • an amount based on the kilometers driven (e.g. mileage allowance ) or agreed in an employment contract or on another legal basis under labor or service law
  • the leasing rate accepted by the employee under an employment contract or on another legal basis under labor or service law .

The usage fee paid by the employee for private use is deducted from the taxable value in use and thus reduces his tax burden . If the usage fee paid corresponds to the taxable value in use, the employee has fulfilled his tax liability .

Corporate law

In the case of corporations , equity must be retained. Writes § 57 para. 1 AktG in the corporation provide that the shareholders their contributions may be given back; for the GmbH , the parallel provision can be found in Section 30 (1) GmbHG . In the event of non-cash contributions , the shareholders may not demand a usage fee for the property , plant and equipment made available to the company if this is used to preserve the share capital / share capital . Any usage fees received are to be reimbursed to the company in accordance with Section 31 GmbHG.

literature

Individual evidence

  1. ↑ Manuel Imhof: Business Restructuring , 2012, p. 85.
  2. ↑ Gerwich Riautschnig: Calculation of the usage fee for vehicles taking into account the judicature of the Supreme Court . In: Kodek / Neumayr (ed.): Zak, Zivilrecht aktuell . No. 2019/420 .
  3. ↑ Gerwich Riautschnig: User fee for vehicles , ZVR 2017/14, p. 45 f.
  4. ↑ Directive 1999/44 / EC of May 25, 1999. Directive 1999/44 / EC will be repealed from January 1, 2022 by Directive (EU) 2019/771 (purchase of goods) .
  5. ^ BGH, judgment of September 16, 2009, Az. VIII ZR 243/08, full text .
  6. ^ Henri Lüdeke: Real Estate Management Contribution Margin and Contribution Margin Flow Account , Volume 2, 2016, p. 3210, FN 37.
  7. ↑ BGH, judgment of 10 September 2003, Az. VIII ZR 22/03, full text = NZM 2004, 25 f.
  8. ↑ OLG Frankfurt , judgment of November 1, 2010, Az. 5 UF 300/10, full text .
  9. ↑ BGH, judgment of May 17, 1983, Az. IX ZR 14/82, Leitsatz = FamRZ 1983, 795.
  10. ↑ BMF, letter of April 19, 2013, Az. IV C 5 - S 2334/11/10004, full text .
  11. ↑ R 8.1 Paragraph 9 No. 4 LStR 2011 .