30.04.2019
A retailer hired his wife as an office and courier worker for 400 € per month as part of a mini job. Of the total of nine hours of work, three were assigned to the office worker and six to the courier worker. An essential part of the wage was the possibility to drive the car used for the courier services privately.
The retailer determined the possibility of private use on the basis of the 1% regulation and paid out the difference to the total remuneration entitlement of 15 € per month. He deducted the costs of the mini job from the profit as an operating expense. However, the tax office did not accept the employment relationship.
In the first instance the tax office lost to the fiscal lower court Cologne (fiscal court Cologne, judgement of 27 September 2017 - 3 K 2547/16). In the second instance (appeal instance), the tax office won to the Federal Fiscal Court (Federal Fiscal Court, judgment of 10 October 2018 - X R 44-45/17).
The brief justification for this is as follows: Typically, an employer will only hand over a company car to an employee for unrestricted private use if, according to a rough calculation, the employee's expenditure plus the cash wage represents an appropriate consideration for the employee. If the salary is high, the private use of the vehicle has only a relatively minor effect. In the case of a minijob, however, the remuneration is essentially determined by the private use and not by the use of the work.
Judgment
Fiscal court Cologne, judgment of 27 September 2017- 3 K 2547/16
Federal Fiscal Court, judgment of 10 October 2018 - X R 44-45/17
