Mittwoch, 01.01.2014
Tax treatment of a freight forwarder's assumption of fines for drivers – decision of the Federal Fiscal Court
from
Markus SchmuckLawyer
Specialist in criminal law
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With a recent ruling, the Federal Fiscal Court (Bundesfinanzhof, BFH) has changed its employer-friendly case law regarding the assumption or reimbursement of penalties by the employer for misconduct by his employees.
A freight forwarder had paid fines imposed on his drivers for exceeding driving times and not observing rest periods without withholding payroll tax on them. The freight forwarder had instructed his drivers to commit such violations when necessary to meet deadlines. The tax office subjected these payments to payroll tax and claimed S for it. The action brought against the additional assessment was dismissed by the tax court on the grounds that, unlike a parking violation, these are serious violations in which the employee's own interest cannot be neglected.
The BFH rejected the haulier's appeal. A benefit in the form of remuneration is not deemed to exist if the employee's interest is secondary to that of the employer. However, if – in addition to the employer's own business interest – there is a significant interest on the part of the employee, the granting of an advantage is not entirely in the employer's own business interest and leads to a wage benefit. No salary is only present if the advantage, upon objective assessment of all circumstances, proves to be not remuneration but merely a necessary concomitant of operational objectives.
Such necessary side effects of operational objectives do not include unlawful instructions from the employer that violate the law and are subject to fines. The BFH thus agrees with the criticism expressed in the literature regarding its judgment of June 7, 2004, VI R 29/00. In this judgment, the BFH had still held that the assumption of caution money for violating the no stopping rule could be entirely in the employer's own interest and not constitute remuneration. This new decision is (once again) based on the old case law, e.g. LSG NRW (judgment of June 20, 2007 – L 11(8)R 75/06) and practically reverses the new employer-friendly rulings, e.g. LSG Rheinland-Pfalz, judgment of January 20, 2010 – L 6 R 381/08, BeckRS 2010, 68928.
From 2014, freight forwarders will have to take this new decision into account in their risk assessment.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.