Trade tax risks in the professional community

FJ Rhineland-Palatinate, Referee September 16, 2021, 4 K 1270/19, published April 12, 2022

Commercial incidence of dental partnership by concentrating organizational, administrative and regulatory tasks on one of the licensed dentists:

If a co-entrepreneur who is a licensed dentist, in a dental partnership, performs only organizational, administrative, and administrative activities and provides only a small amount of their dental consultations or treatment services directly to patients, this is no longer consistent with the mission statement of the employer’s activity Free as a dentist and consider his business as a business. Thus, it affects income entire Solidarity trading company.

Issue

Plaintiff is a partnership in which several licensed dentists join forces to jointly practice dental treatment for private and statutory health insurance patients. In the year in dispute, the practice generated sales of about 3.5 million euros, of which only about 900 euros was attributable to one of the so-called large partners, who was primarily responsible for organizing, managing and managing the practice. The tax office conducted an audit and came to the conclusion that the income from the dental partnership no longer qualifies as self-employment, but as income from business operations, because in an independent partnership or partnership, each partner has the characteristics of self-employment in their person must meet.

resolution

After unsuccessful objection proceedings, the dentists’ lawsuit was dismissed by the Finance Court.

If the shareholders of a partnership provide their services independently and partially – due to the lack of personal responsibility – commercially, then their activity must be classified as commercial in accordance with Clause 15 Clause 3 No. 1 Variant 1 EStG.

Realistic requirements for independent business cannot be satisfied by the partnership or partnership itself, but only by natural persons.

The partnership only develops an activity that constitutes the exercise of a liberal profession within the meaning of Section 18 of the EStG if all partners meet the criteria for an independent profession.

The court concluded that the lack of cooperation d. AM in individual dental examination or treatment orders were not limited to exceptions and isolated routine cases, but formed the norm in the plaintiff’s firm.

How active the professional is depends on the job profile in question. The professional must also act in a “leading” and “independent” manner based on his specialized knowledge. Personal liability is not limited to assuming external responsibility for the proper execution of an individual order. Instead, the execution of each individual order should be attributable to the professional himself and not to his qualified personnel. However, the personal commitment of each entrepreneur is required here too typical doctor Healing Zone The sole performance of mere commercial management or other administrative tasks is detrimental and conducive to business activity. Also, not every activity that serves the treatment of dental diseases falls within the practice of dentistry, but only an activity that is performed on a patient’s body or in any other way towards patients with the intent of diagnosis or treatment, such as admission. Dentures and related measures

The decision is not final yet. Review allowed.

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