Status determination procedure

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The status determination procedure in the area of statutory social insurance in Germany is used to establish the status of persons as dependent employees or self-employed . In addition, a binding decision is made about the status of a helping spouse ( family assistance ) - as opposed to dependent employment. The so-called clearing house of the German Federal Pension Insurance Association is responsible for carrying out the status determination procedure . The decision of the clearing house is binding for all statutory social insurance carriers.

A distinction is made between the so-called inquiry procedure and the mandatory status determination procedure.

Inquiry procedure according to Section 7a, Paragraph 1, Clause 1 of SGB IV

The inquiry procedure was introduced on January 1, 1999. It can be applied for by the employee or employer involved or the self-employed person or his client if there is objective doubt about the social law status. It is sufficient for one of the parties involved to submit the application. The application by a third party, for example a social security agency, is not possible. Likewise, no authority may request someone to submit an application. If an authority has doubts about the legality of the contractual relationship, it can turn to the responsible collection agency (statutory health insurance) for administrative assistance. The collection point has then gem. To decide on the status according to Section 28h (2) SGB IV.

The inquiry procedure is excluded if the pension insurance agency has already announced the next tax audit in writing or if a decision has already been made by the collection agency or a procedure has already been initiated (Section 28h (2) SGB IV).

The subject of the inquiry process is the determination of the (non) existence of an employment relationship. Administrative acts on mere elements of the social security obligation due to paid dependent employment (so-called element determination ) are, however, inadmissible.

Mandatory status determination procedure according to Section 7a, Paragraph 1, Clause 2 of SGB IV

When starting an employment relationship, when the employee is registered, the employer must inform the collection agency whether the person concerned is the spouse or partner of the employer or whether the person to be registered is a managing partner of a GmbH. Employment relationships of descendants of the business owner established after December 31, 2007 are also affected by this procedure. Corresponding key figures are available to the employer for automatic reporting.

When taking up an activity and registering for social security, the employer has the option of using a status indicator to indicate whether the employee is a relative (spouse, descendant or life partner (same-sex registered civil partnership)) or a partner-managing director of a GmbH . The status indicator 1 is intended for relatives and the status indicator 2 is intended for shareholder-managing directors. If a message marked in this way is received by the responsible collection point (statutory health insurance), this message is electronically forwarded to the clearing house of the German Pension Insurance Association. After a first inspection of the report (checking whether there is a real new start), a letter with the questionnaire and the request for the necessary documents is sent electronically. After the documents have been returned, a check is carried out to determine whether it is a self-employed activity, an employment or, in the case of relatives, an additional family work. The result is then reported electronically to the responsible collection point. If the procedure cannot be carried out due to insufficient cooperation on the part of the employer (no submission of the necessary documents), this will also be reported electronically to the collection point and the registration for social insurance must be canceled.

In the case of the group of managing directors, the compulsory procedure, similar to the inquiry procedure, should be used to decide between dependent employment and self-employment.

For the group of spouses of a self-employed person, a decision should be made between dependent employment, self-employment and family assistance.

Since the mandatory status determination procedure was only introduced on January 1, 2005 and was not extended to descendants of the business owner until January 1, 2008, the previously existing cases remain unaffected by this procedure. In principle, however, the inquiry procedure can be used for such cases.

Status determination procedure for scholarships

In the field of science and research, in addition to regular employment relationships, jobs are carried out through grants . The payment is tax-free. There is no unemployment, pension, health or accident insurance for the employees through the employer. This means that employment via scholarships is significantly more cost-effective for the employer than regular employment relationships subject to collective bargaining and social insurance.

An initiative by those affected criticized this practice as a measure to undermine the social security obligation. The Education and Science Union recommends applying for a status assessment procedure in order to determine whether you are obliged to pay social security. In order to avoid negative effects on the working atmosphere, please note that an application can be submitted four years retrospectively. If, in this case, the scholarship has already ended, the corresponding social security contributions must be paid in full by the employer.

Web links

Individual evidence

  1. ↑ Insurance law assessment of working relatives, Annex 4 ( PDF , ≈ 92  KB ) - German pension insurance , probably published around 2004; u. a. with "family support"
  2. ↑ Federal Social Court , judgment of March 11, 2009 - Az. B 12 R 11/07 R
  3. ↑ Deutsche Rentenversicherung - 2010 - Item 3: Change of the joint circular "Common registration procedure for health, long-term care, pension and unemployment insurance"; here: inclusion of the mandatory status determination procedure according to § 7a paragraph 1 sentence 2 fourth book of the Social Security Code (SGB IV). Retrieved June 2, 2019 .
  4. ^ Sven Grünewald: Research grants: Illicit work in the Max Planck Society? Ed .: Frankfurter Allgemeine Zeitung. June 10, 2012, ISSN  0174-4909 ( faz.net ).
  5. ↑ Federal Government 17th electoral period: Response of the Federal Government to the minor question from the MPs Dr. Petra Sitte, Jan Korte, Agnes Alpers, other MPs and the DIE LINKE parliamentary group. - Printed Matter 17/9429 - employment situation of doctoral students in the non-university research institutions . Ed .: German Bundestag. No. 17/9639 . Berlin May 14, 2012 ( bundestag.de [PDF]).
  6. ↑ Dr. Andreas Keller, Dr. Peter Hauck-Scholz: Status determination procedure - scholarship holders can have their compulsory social insurance checked . Ed .: GEW - Union of Education and Science. Frankfurt am Main May 2012 ( archive.org [PDF]).