Reporting obligation for certain fee payments according to § 109a EStG

For fee payments made by companies outside of an employment relationship after 1 January 2002, reports must be submitted to the tax authorities at the end of the calendar year. This applies for the first time in 2003 for payments made in 2002.

:: Obligated to inform
Companies within the meaning of § 2 UStG (also foreign companies) as well as public and private legal entities (also without corporate status) are subject to this notification obligation.

:: Service providers
This includes natural persons as well as associations of persons without their own legal personality (e.g. OHG, OEG, KG, KEG, GesbR, ARGE, co-ownership community) In the case of associations of persons, the duty to notify only applies to the association and not to its members.

:: Obligatory reporting obligations
For the following taxative In the case of paid honoraria, there is a duty to notify:

1) Members of a supervisory board, administrative board and other persons entrusted with supervising the management
2) Building savings and insurance agents
3) Board of Trustees
4) Presenters, teachers, and instructors
5) Courier and newspaper deliverers
6) Private business intermediaries
7) Officials of publicly legal bodies that receive a function fee
8) Persons who provide services under a free service contract and are subject to social security obligations.

Note:
A more detailed definition of which individuals are included in this is set out in detail in RZ 8304 to 8311 EStR. In the following cases, the BMF holds the following legal view:
Members of #the Savings Bank Council fall under point 1, as they perform a monitoring function rather than an executive function (BMF of 30 August 2002)
– Securities service providers are not subject to reporting obligations under point 6, unless they fall under point 8 (free employment relationship) (BMF of 25 June 2002)
– Mediators for car buyers are not subject to notification obligations under either point 2 or point 6, unless they fall under point 8 (free employment relationship) (BMF of 23 April 2002)
Furthermore, it should be noted that the duty to report applies even to a former activity subject to reporting (e.g., follow-up commissions from a former representative activity).

Form of the communication

– Until the end of January of the following year, by means of Form E 18, If the prerequisites for an automatically supported transmission are not met.
– Until the end of February the following year, by electronic transmission.
The notification must be submitted to the tax office responsible for sales tax.

Marginal limits

If the total net remuneration (excluding sales tax) including travel allowance per person per year does not exceed €900,– or €450,– for each individual service, the notification may be omitted.

Impact on the recipient of the honorarium

The reporting entities must issue a similar notice to the recipient of the fees. They are required to separately disclose the relevant fees in their profit and loss statement or income statement. If the fee recipient prepares the financial statements and the invoice is not paid until the following year, the separate disclosure requirement does not apply in both years (RZ 8317 EStR).

Special case Supervisory Board remuneration

The fees paid by a limited liability company or a limited partnership to supervisory board members in accordance with a shareholders’ resolution fall under the reporting obligation. It should be noted that only a natural person can be a supervisory board member, who Employee representatives exercise their function in the supervisory board in accordance with § 110, paragraph 3, ArbVG voluntarily The members of the supervisory board are entitled to compensation for reasonable out-of-pocket expenses only, and not to a bonus. Any bonus paid out in violation of the law is subject to liability consequences. There is likely to be a duty to report any bonus paid out despite that. Furthermore, it should be noted that the payment of a bonus to the supervisory board’s parent company is not legally possible, as only a natural person can be a supervisory board member. Such a payment is usually considered a disguised profit distribution.
The fees of the Supervisory Board member are to be taxed as income from self-employment (§ 22, paragraph 2, EStG) and are subject to insurance obligations in accordance with § 2, paragraph 1, Z 4 of the GSVG.

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