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Qualifying income: income of a GmbH managing partner of a consulting contract

Any who as Managing Director with his GmbH an advisory agreement (in this advisory support in financial and technology transfer of personal contacts in the banking sector), achieved not necessarily - as intended - income from self-employment. Whether there are income from self-employed, non-self, or commercial activity must be determined by reference to general criteria for revenue accrual (BFH 20:10:10, VIII R 34/08).

The plaintiff had made in proceedings before the FG income from self-employment claims. The FA classified the income as a business. However, the FG was by a non-self-employed from. For the director of a corporation is incorporated as an organ in the body of society and have to follow the instructions of the Company arising from the appointment as CEO. Outside of the management area by separate agreement may only be self-services will be agreed if these differences in form and content of the actual management task.

The BFH picked up the FG decision and remanded the case to the FG: The FG had gone out of other legal principles. When re-evaluating it legal to have others Mind that the consulting contract was already not to view the wording of a work or employment contract, because the lack of an employment contract typical scheme website. If the FG neither evidence of a constructive dividend income or for the applicant from non-self-employed find work, it would have to consider whether the plaintiff is a an advisory business administration have exerted similar activity.

Practice Note: boundary characteristics of non-self-vs. self-employment

• For a non-self-employment may, in particular personal dependence, Subordination, fixed working hours and remuneration, leave entitlement and other social benefits, overtime pay and leave be paid in case of illness and inclusion in the talk mode.
• For self-employment, however independence talk in the organization and implementation of the operations, business initiative, binding only for certain days of the operation, business relationships with several contractors and act on their own account and responsibility.