What is the difference between traders and freelancers with regard to Form EÜR?

The distinction between tradespeople and freelancers is particularly important with regard to the income surplus calculation:

While tradespeople may only use the income surplus calculation if they do not exceed certain turnover and profit limits, freelancers may always use it, regardless of the amount of turnover and profit.

Strictly speaking, this refers not only to freelancers but to all individuals engaged in self-employment according to § 18 EStG.

Important is the question: Who is a freelancer and who engages in other self-employment?

Freelancers

A freelancer is someone who works independently and is self-responsible, practising a specific professional activity listed in § 18 para. 1 EStG. Freelance professions require an activity that does not necessarily require a university degree. It only needs to be a scientifically based education. This includes self-study or knowledge acquired through professional experience. The knowledge must be equivalent to a university degree.

(1) Freelancers are individuals who perform a specific activity (§ 18 para. 1 no. 1 EStG), namely a

• scientific, artistic, literary, teaching or educational activity.

(2) Freelancers are also individuals who practise a specific listed profession explicitly mentioned in the Income Tax Act (§ 18 para. 1 no. 1 EStG):

• Medical professions: doctors, dentists, alternative practitioners, dental technicians, physiotherapists, nurses, hygiene specialists.
• Legal and business consulting professions: lawyers, notaries, patent attorneys, auditors, tax consultants, consulting economists and business administrators, sworn accountants, tax agents.
• Technical and scientific professions: surveyors, engineers, architects, commercial chemists, pilots.
• Media professions: journalists, photojournalists, interpreters, translators.

(3) Freelancers can also be individuals who practise a similar profession comparable to the listed professions in terms of activity and training. The list of freelance professions in § 18 para. 1 no. 1 EStG is not exhaustive. It is important that the activity is carried out in a leading and self-responsible manner based on personal expertise. This applies, for example, to the following professions:

• Geriatric nurses, dieticians, occupational therapists, podiatrists, speech therapists, orthoptists, medical pedicurists, state-certified masseurs and therapeutic masseurs, medical bath attendants, paramedics, dental practitioners, midwives, psychological psychotherapists, child and adolescent psychotherapists, IT consultants, business consultants.
• Software engineering, work as a network or software administrator and supporter (BFH rulings of 22.9.2009, VIII R 31/07, VIII R 63/06, VIII R 79/06).

Activities that do not qualify as freelance work and do not constitute a business operation fall under other self-employment. A characteristic is also the personal work performance. However, other self-employment is usually carried out occasionally and only exceptionally on a sustainable basis (§ 18 para. 1 no. 3 EStG):

• Executors,
• asset managers,
• supervisory boards,
• property managers,
• insolvency administrators,
• trustees,
• guardians,
• estate administrators,
• arbitrators,
• interviewers for state statistical offices,
• childminders,
• volunteer mayors.

The distinction between business and self-employment is often difficult, as freelance work also generally involves the intention to earn. Many activities therefore fall under both the characteristics of freelance work and those of a business. In these cases, the decisive criterion is the intellectual, creative work that is the focus of freelance work.

What is the difference between traders and freelancers with regard to Form EÜR?

What is the "Form EÜR"?

Since 2005, the profit and loss calculation has been standardised (§ 60 para. 4 and § 84 para. 3c EStDV). This means: those using the profit and loss method must complete the official form "Form EÜR" and attach it to their tax return.

Small business owners whose business income (turnover, not profit!) is less than 17,500 Euro gross were not required to fill in the tax form "Form EÜR" until 2016. They could calculate their profit informally by comparing business income and expenses and attach this record to the tax return (BMF letter dated 10.2.2005, BStBl. 2005 I p. 320). However, this simplification rule has been abolished from the 2017 tax year. Now, all taxpayers who determine their profit using the profit and loss method are generally required to submit their income tax return and the standardised "Form EÜR" electronically to the tax authorities.

The previous legal hardship regulation remains in place: To avoid "unreasonable hardship", the tax office may allow the tax return to be submitted to the tax office using the official paper form (§ 25 para. 4 sentence 2 EStG; § 13a para. 3 EStG; § 18 para. 3 sentence 3 UStG; § 14a sentence 2 GewStG). In addition to the individual legal regulations, the Fiscal Code contains a general hardship regulation (§ 150 para. 8 AO): The tax office may waive electronic data submission if it is economically or personally unreasonable for the taxpayer.

This is particularly the case if the taxpayer does not have the necessary technical equipment and creating the technical means for remote data transmission of the officially required data set would only be possible at considerable financial expense, or if the taxpayer is not or only partially able to use the remote data transmission options due to their individual knowledge and skills. However, tax offices are increasingly handling this more restrictively!

Note: If you do not fulfil your obligation to submit the "Form EÜR", the tax office may threaten and impose a penalty (§ 328 AO). However, the tax office may not charge a late fee because the "Form EÜR" is not part of the tax return (OFD Rheinland dated 21.2.2006, S 2500-1000-St 1).

The "Form EÜR" requires numerous detailed entries on income and expenses in a strictly formal manner. Completing the now four pages with over 100 lines requires a lot of additional work and knowledge - and often also further costs for professional advice and support.

It is advisable to base the profit and loss calculation on the system of the "Form EÜR" to make the year-end closing easier. You should organise your income and expenses according to the criteria of the form, as this will make it easier to match them to the queries in the form.

What is the "Form EÜR"?

How does the net income method work?

The income surplus calculation (in accordance with § 4 para. 3 EStG) is the simplest method of determining profit. Here, business income is compared with business expenses.

The result is the taxable profit or loss.

Business income
./. Business expenses
= Profit or loss

Receipts

The income surplus calculation also requires that business income and expenses are evidenced by receipts. These receipts and bank statements must be collected. Although there is no prescribed form for collecting receipts, you should avoid the famous shoebox. An organised filing of receipts can even - theoretically - suffice instead of records (§ 146 para. 5 AO).

This means that as an income surplus calculator, you theoretically do not necessarily have to record your business expenses, but can prove them solely with receipts. 

So much for theory. But beware: a recording obligation may arise under the Value Added Tax Act or the "Principles for the proper management and storage of books, records and documents in electronic form as well as for data access (GoBD)". Entrepreneurs are required to record non-cash transactions within ten days. Cash receipts and payments must be recorded daily. Information must not be lost, so an organised filing of incoming and outgoing invoices and a systematic recording of payments is required. This is usually done by continuously numbering and coding incoming and outgoing invoices, as well as filing them in special folders or through electronic records. Subsequent changes in accounting, such as cancellations or corrections, must be clearly documented. Therefore, even as an income surplus calculator, do not forgo ongoing records. 

Important: As an entrepreneur, you must store all documents, including MS Office documents, PDF files and emails, in a way that ensures they cannot be altered afterwards. This means that subsequent changes to electronic documents, even unintentional ones, must be excluded or traceability through a complete change history must be ensured. Therefore, store electronic documents in a document management system.

You do not need to send your receipts to the tax office with your tax return. However, you must keep the receipts for 10 years. For tax reasons, all books and records that are relevant for taxation must be kept (§ 147 para. 1 AO).

Cash basis accounting

Income and expenses are recorded according to the cash basis accounting principle, i.e. they are booked at the time the payments are made. It is therefore not the date of the invoice that matters, but the date of payment.

Only income and expenses that affect profit, i.e. influence profit, need to be recorded. For example, taking out a loan does not constitute business income and does not need to be recorded in the accounts. On the other hand, amounts of money used to repay a loan are not business expenses. However, interest paid on loans and loan costs may be deductible as business expenses. Similarly, cash withdrawals from a bank account are not taken into account.

You pay an invoice dated 30.11.2021 only on 2.2.2022.

This expense is not taken into account in the profit determination for 2021; it is only recorded in the profit determination for 2022.

Regular recurring payments

Rent, insurance premiums, etc. are considered regular recurring payments made up to 10 days before and after the turn of the year and are to be allocated to the year to which they economically belong. This applies not only to expenses but also to income (§ 11 EStG).

A regular recurring expense is also the advance VAT return for December or the fourth quarter, which must be submitted by 10 January of the following year. The payment in January can therefore be deducted as business expenses in the old year. The same applies in the case of a VAT refund, even if the tax office only transfers the money after 10 January (BFH ruling of 1.8.2007, BStBl. 2008 II p. 282).

Example: You transfer the premium for business liability insurance for 2023 on 27.12.22. Although the payment was made in 2022, the amount is allocated to 2023 and is only included in the profit determination for 2023.

Net or gross principle?

If you are subject to VAT, it is advisable to show all business income and expenses at net value - i.e. without VAT. The VAT collected and paid must be stated separately. You will need net values for the advance VAT return and the VAT return anyway.

However, if you are exempt from VAT as a small business owner in accordance with § 19 UStG, you state your business income at the invoice amount (i.e. without VAT) and your business expenses at the gross amount (including VAT). The same applies to entrepreneurs who only generate VAT-exempt turnover, e.g. doctors, alternative practitioners, physiotherapists, midwives, insurance agents and brokers.

VAT payments

VAT payments affect profit: VAT collected from outgoing invoices is business income, VAT paid (input tax) in incoming invoices is business expenses. VAT refunds from the tax office are business income, VAT payments to the tax office are business expenses.

Accruals and provisions

These are not made because the payment date is decisive. For example, an insurance premium paid during the year does not have to be carried over to the following year on a pro-rata basis. It is recorded in full in the year of payment.

Receivables and liabilities

These are not shown because, according to the cash basis accounting principle, only actual payments are recorded.

Balance sheet accounts

These do not need to be maintained. Therefore, there is no cash account. Cash balances in bank accounts do not need to be reconciled with receipts. It is not necessary to record cash payments in a cash book (BFH ruling of 16.02.2006, X B 57/05).

Inventory

An inventory at the end of the year, i.e. the recording of fixed assets and stock, is not required, as you are not making a business asset comparison. This also eliminates the tedious valuation of stock.

Current assets

The purchase costs of current assets, such as goods and consumables, are to be recorded as business expenses at the time of payment.

A special rule applies to certain current assets, namely shares in companies, securities and similar non-certificated claims and rights, land and buildings in current assets:

• For purchases after 5.5.2006, the purchase costs of these assets can no longer be immediately deducted in full as business expenses. Instead, the purchase costs or the value replacing them for these assets are only taken into account as business expenses upon sale or withdrawal, i.e. at the time the sales proceeds are received or the item is actually withdrawn (§ 4 para. 3 sentence 4 EStG).

Fixed assets

Fixed assets are not recorded as business expenses in the year of purchase, manufacture or introduction into business assets at the full purchase or manufacturing costs, but only through depreciation - more precisely: depreciation for wear and tear (AfA). For this purpose, the purchase or manufacturing costs are spread over the normal useful life and the pro-rata annual amount is recorded as business expenses.

Low-value assets

For low-value assets purchased, manufactured or introduced into business assets from 1.1.2018, the following new regulation applies:

1. Low-value assets with purchase or manufacturing costs up to 250 Euro (excluding VAT) can be immediately deducted as business expenses or optionally depreciated over the useful life. The option can be exercised individually for each asset (asset-related option). There is no special recording obligation, e.g. in an asset register (§ 6 para. 2a sentence 4 EStG).
2. Low-value assets with purchase or manufacturing costs of 250.01 Euro to 800 Euro (excluding VAT) can be deducted in full as business expenses in the year of purchase, manufacture or introduction or optionally depreciated over the useful life. In this case, the low-value assets must be listed in a special asset register, with the date of purchase, manufacture or introduction and the purchase or manufacturing costs. The register is not required if this information is evident from the accounts. Assets up to 250 Euro no longer need to be listed in an asset register since 2018 (§ 6 para. 2 sentence 4 and 5 EStG).
3. For low-value assets with purchase or manufacturing costs of 250.01 Euro to 1.000 Euro (excluding VAT), a collective item can be formed, which is to be dissolved over 5 years at 20% each, reducing profit (so-called pool depreciation). The option must be exercised uniformly for all assets of the financial year with purchase costs of more than 250 Euro to 1.000 Euro (financial year-related option). Apart from the accounting entry of the access in the collective item, there are no further documentation obligations. You do not need to keep an inventory list (§ 6 para. 2a sentence 1 and 4 EStG).
4. Assets over 800 Euro must be depreciated according to the general rules. The so-called "depreciation for wear and tear" (AfA) can then be deducted each year. However, there is still the option of forming a so-called collective item for costs up to 1.000 Euro and dissolving it linearly over 5 years.

For types of income surplus (employment, rental and leasing, other income), the regulation applies that from 1.1.2018 low-value assets with purchase costs up to 800 Euro (excluding VAT) can be immediately deducted as advertising costs or optionally depreciated over the useful life (§ 9 para. 1 no. 7 sentence 2 EStG).

Investment grants for assets

If you receive public investment grants for the purchase or manufacture of certain assets, you have the choice as an income surplus calculator: You can

• deduct the grant from the purchase or manufacturing costs of the asset, thereby reducing the basis for depreciation. This reduction must be made in the year in which the grant is approved, not in the year in which the grant is actually paid (BFH ruling of 29.11.2007, BStBl. 2008 II p. 561).
• tax the grant as business income, in the year in which the grant is granted (BFH ruling of 19.7.1995, BStBl. 1996 II p. 28).

Separate bank accounts

Do you actually have to keep separate bank accounts for business and private transactions? You are not legally obliged to do so, but it is certainly better. However, if you only have a mixed account, you must ensure through appropriate records that the origin of the funds received in this account can be clarified (BFH ruling of 12.6.2003, XI B 8/03).

How does the net income method work?

What records are required?

The profit and loss calculation (EÜR) is based on simple records that capture all income and expenses for a year. According to the cash basis accounting principle, business income is recorded in the year it is actually received, and business expenses in the year they are paid.

Unlike double-entry bookkeeping or a balance sheet, you do not need to prepare a complex profit and loss statement or conduct an inventory. The way you collect your receipts and record your figures is largely up to you.

However, it is important not to use a single category for business income and expenses. Especially for larger businesses, you should divide the items according to the structure of the "Form EÜR" in the tax form to ensure a clear and correct presentation.

Recording of income

Even as a profit and loss calculator, you are required to record your income individually for VAT purposes (§ 22 para. 2 UStG; BFH ruling of 26.2.2004, BStBl. 2004 II p. 599). You must list

• VAT-liable income with net amounts and associated VAT, separated by tax rates (7%, 19%),
• VAT-free income.

Separate records of business expenses

Certain business expenses must be recorded individually and separately from other business expenses, as they are only deductible to the legally prescribed extent (§ 4 para. 7 EStG). Specifically

• entertainment expenses at 70%,
• gifts up to 35 Euro per year and business associate,
• costs of a home office (only if it is the centre of all activities),
• withdrawals and deposits if you want to deduct interest expenses exceeding the base amount of 2.050 Euro as business expenses.

Asset register

In an asset register, you must continuously record the following assets with their acquisition or production costs and the date of their acquisition, production or deposit (§ 4 para. 3 sentence 5 EStG):

• non-depreciable fixed assets, such as land, investments, other financial assets, non-depreciable intangible assets.
• depreciable fixed assets acquired, produced or deposited into business assets after 5.5.2006. This applies to assets with acquisition or production costs of more than 1.000 Euro net (for acquisitions from 1.1.2008).
• certain current assets acquired, produced or deposited into business assets after 5.5.2006. This applies to shares in corporations, securities and comparable non-securitised claims and rights, land and buildings in current assets.

Note: In this asset register, for depreciable fixed assets (e.g. company cars, PCs, office furniture, etc.), the book values at the beginning and end of the financial year as well as the corresponding depreciation amounts and any special depreciation under § 7g EStG must also be entered.

A further special inventory is required for low-value assets. Those acquired or produced between 2010 and 2018 must

• not be recorded up to 250 Euro net (up to 2017: 150 Euro) (they are written off immediately) and
• recorded in a special account from 250.01 Euro (up to 2017: 150.01 Euro) to 1.000 Euro net and depreciated as a collective item over 5 years.

Withdrawals and deposits

These must be recorded separately if "other interest on debt" has been incurred for business loans. Otherwise, the deduction of interest on debt is limited to the interest for financing fixed assets and other interest up to only 2.050 Euro (§ 4 para. 4a sentence 6 EStG).

Investment deduction

Special records are required if you wish to claim an investment deduction. This is possible if the profit - without the investment deduction - is not higher than 200.000 Euro.

Home office

For self-employed individuals who claim a home office for tax purposes, specific recording obligations apply in accordance with § 4 para. 7 EStG. These obligations concern the recording of costs attributable to the home office. However, it is acceptable to estimate these costs and then document them after the end of the financial or calendar year using the bank's annual statement. This also applies to consumption-dependent expenses such as water and energy costs.

For depreciation amounts, it is sufficient to record them once a year promptly after the end of the respective calendar or financial year. The special recording obligations under § 4 para. 7 EStG do not apply for the deduction of an annual flat rate.

Profit and loss calculators are not generally subject to any special statutory recording obligations. HOWEVER: A recording obligation may arise under the VAT Act or the "Principles for the proper management and storage of books, records and documents in electronic form and for data access (GoBD)". Entrepreneurs are required to record non-cash transactions within ten days. Cash receipts and payments must be recorded daily. Information must not be lost, so an orderly filing of incoming and outgoing invoices and a systematic recording of payments is required. This is usually done by continuously numbering and coding incoming and outgoing invoices, as well as filing them in special folders or through electronic records. Subsequent changes in accounting, such as cancellations or corrections, must be clearly documented. Therefore, do not forgo ongoing records even as a profit and loss calculator. 

Important: As an entrepreneur, you must store all documents, including MS Office documents, PDF files and emails, in a way that ensures they cannot be altered afterwards. This means that subsequent changes to electronic documents, even unintentional ones, must be excluded or traceability must be ensured through a complete change history. Therefore, store electronic documents in a document management system.

What records are required?

What are the specific features regarding the advance VAT return?

The advance VAT return must be calculated by the 10th day after the end of the advance return period, submitted electronically to the tax office, and is also due for payment. For the month of December or - for quarterly payers - for the fourth quarter, the payment must be made by 10 January of the following year (§ 18 para. 1 UStG).

The question is which year this payment should be assigned to for VAT and income tax purposes.

• VAT: To calculate the VAT liability, the payment for December or the fourth quarter must be attributed to the old year in the annual VAT return (§ 18 para. 1 UStG).
• Income tax: In the profit calculation using the cash method, the advance VAT payment for December or the fourth quarter is treated as business expenses of the old year. However, this only applies if the payment is made by 10 January of the new year. This is because the VAT payment is a regularly recurring expense that is attributed to the year to which it economically belongs if paid within 10 days after the end of the calendar year. Therefore, for those using the cash method, the payment in January can still be deducted as business expenses in the old year (BMF letter dated 10.11.2008, BStBl. 2008 I p. 958; BFH judgment dated 1.8.2007, BStBl. 2008 II p. 282).

What applies if 10 January is a Saturday or Sunday, as in January 2021?

• VAT: In this case, the due date for the advance VAT payment is postponed to the next working day - for the December 2015 payment, this is 11 January 2016, and for the December 2020 payment, it is 11 January 2021 (§ 108 para. 3 AO).
• Income tax: The tax authorities are very strict regarding income tax: If the advance VAT payment is made after 10.1.2016, it can no longer be considered as a business expense in the 2015 annual account for those using the cash method, but must be recorded in the 2016 annual account. The payment after 10 January is no longer a regularly recurring expense (OFD North Rhine-Westphalia dated 7.3.2014, Kurzinfo ESt 9/2014; confirmed by BFH judgment dated 11.11.2014, VIII R 34/12).
• Furthermore, the tax authorities believe that not only must the payment be made, but it must also be due by 10 January. This was not the case in January 2015 and January 2016, as the due date is extended to the next working day in accordance with § 18 para. 3 UStG - and thus falls outside the 10-day period. This means that even timely payments before 10.1.2016 would generally make it impossible to deduct them as business expenses in 2015.

The Federal Fiscal Court has recently delivered a strong rebuke to the tax authorities: Advance VAT payments made within ten days after the end of the calendar year are also tax-deductible in the previous year if 10 January of the following year falls on a Saturday or Sunday. The extended "due date" on the following working day is irrelevant for income tax purposes (BFH judgment dated 27.6.2018, X R 44/16).

Even if the tax authorities require that the advance VAT payment must be "due" within the ten-day period, this requirement is met. When determining the due date, only the statutory deadline of § 18 para. 1 sentence 4 UStG should be considered, not a possible extension of the deadline in accordance with § 108 para. 3 AO. This extension is not applicable in connection with § 11 para. 2 EStG for income tax, as it is merely a fiction of inflow and outflow.

The Federal Fiscal Court has clarified in two cases that the ten-day rule additionally requires that a regularly recurring expense is not only paid shortly after the end of the calendar year to which it economically belongs, but must also be due within a short period around the turn of the year (BFH judgment dated 16.2.2022, X R 2/21; BFH judgment dated 21.6.2022, VIII R 25/20).

Case 1: A taxpayer paid the VAT for the months of May to July 2017 only on 9 January 2018, but claimed the deduction as a business expense for 2017. The tax office rejected this because the VAT was not due around the turn of the year 2017/2018. The BFH agreed with the tax office, and the expense was attributed to 2018.

Case 2: A claimant paid the advance VAT payment for the advance return period December 2017 on 10 January 2018. However, this was not due until 10 February 2018 due to an extension of the deadline. Here too, the tax office rejected the deduction for 2017, and the BFH agreed. The advance VAT payment for the advance return period of December of the previous year, which was paid within the ten-day period but was not due until after this period due to an extension of the deadline, can only be recognised as a business expense in the year of the outflow for those using the cash method.

Note: The regulation is extremely complicated and has numerous peculiarities, such as in the case of direct debit. If necessary, ask your tax office when the advance VAT payment should be recorded.

What are the specific features regarding the advance VAT return?