Employment relationship or duty of family support

The desire to regulate the spouse's participation in the spouse's business (or vice versa) – the same applies to life partnerships – in the form of a service relationship is primarily driven by the idea of social security protection (KV, UV, PV, etc.). However, in order to achieve this goal, the mere registration with the GKK and the payment of contributions and taxes are not sufficient. Rather, it is crucial to ensure that all the criteria for a service relationship are met.

Characteristics for a service relationship

What is essential are: the personal, time-limited work obligation, the disciplinary responsibility and autonomy of the work, the loyalty obligation, as well as the organizational integration into the employer’s business. In contracts between close relatives, it is added that these are sufficiently expressed externally, have a clear and unambiguous content that excludes any doubt, and would have been shot down between unrelated parties under the same conditions in order to achieve tax and social security recognition. Legal basis: § 1151, paragraph 1, ABGB, § 47, paragraph 2, EStG, and § 4, paragraph 2, ASVG.

Jurisprudence

:: Employment as needed

The VwGH on 22 February 2000, 99/14/0082 refused to recognize the employment relationship of the spouse because there was no agreement on the start and end of the work and therefore it was not ensured how the employee would fulfill the agreed 20-week work hours.

:: Wife’s standby service

In the case of the VwGH of 10/13/1999, 93/13/0074, the question arises of the operational necessity of the standby duty of the spouse of a pharmacist. The argument that the wife works practically around the clock and has no free time constituted for the court a "practically unfeasible activity". This activity cannot withstand a comparison with another entity.

:: Family duty of assistance

The OGH 9 Ob A 25/01v dismissed the claim of the employed wife for insolvency benefit in the following case. The wife worked from home for her husband’s business. It was agreed that she would perform work that the husband would entrust to her. Due to financial problems, the salary could not be paid for a long time. As a result of bankruptcy, the wife finally claimed her outstanding salary from the insolvency benefit fund. The court classified the contractual relationship as atypical and not in conformity with the external comparison of an employment relationship.

Conclusion

If the essential characteristics for a a real employment relationship, It is a nullity Dependent relationship. The contributions made represent lost expenses and do not constitute an ASVG insurance, which has particularly fatal consequences for the intended pension insurance. It would be worth considering, however, whether a Free employment relationship in accordance with § 4, paragraph 4 of the ASVG, exists, or New independence In accordance with § 2, paragraph 1, item 4 of the GSVG, which could, for example, be considered when taking over the accounting or payroll processing function. But even in these cases, external comparison is a decisive criterion.
In contracts between close relatives or partners, the conclusion of a written contract is highly recommended. This applies especially to service contracts in which all essential features must be included. However, formalization also involves its material fulfillment. In the motto Paper is patient It is important to ensure that the contract is also "lived".

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