Should operating income be stated net or gross?

Business income must be stated at the net value - that is, excluding VAT. The VAT applicable to this must be entered separately.

An exception applies to small businesses that do not show VAT in accordance with § 19 UStG: They state their business income at the invoice amount.

Business income must be declared in the year in which it was received. Regularly recurring business income belongs to the relevant year even if you receive it within 10 days after or before the turn of the year.

Business income that is income tax-free does not need to be entered in the "Anlage EÜR" due to lack of query. This includes, for example:

• for start-ups, the start-up grant,
• investment allowance,
• tax-free portion of dividends from shares held as business assets. The taxable half of the dividends must be entered in the line "VAT-free, non-VATable business income".

Expense allowances from a privileged part-time activity remain tax-free:

• up to 3,000 Euro if you have a part-time job as a trainer, instructor, educator, etc., e.g. as a conductor, choir director, trainer, teacher at an adult education centre or IHK, trainer at the fire brigade or DRK (so-called trainer allowance according to § 3 No. 26 EStG).
• up to 3,000 Euro if you work as a legal guardian, custodian or carer (so-called carer allowance according to § 3 No. 26b EStG).
• up to 840 Euro if you have another voluntary activity in the non-profit sector, e.g. as an official, board member, fire brigade equipment manager, equipment manager (so-called volunteer allowance according to § 3 No. 26a EStG).

Note: In the past, tax-free income and related business expenses were not queried, with some exceptions. This is now different. Now, for example, expense allowances for trainers or volunteers (§ 3 No. 26, 26a, 26b EStG), start-up grants (§ 3 No. 2 EStG) or restructuring income (§ 3a EStG) must be stated under business income. If and to the extent that this income is tax-free, it must be entered in lines 91-93, i.e. the initially declared (tax-free) business income is deducted here. If applicable, the trainer allowance of 3,000 Euro or the volunteer allowance of 840 Euro must be entered if no higher business expenses are claimed.

(2022): Should operating income be stated net or gross?

What right of election do I have with the small business regulation?

The small business regulation for VAT can be chosen if your gross turnover in the previous year did not exceed 22,000 Euro and is not expected to exceed 50,000 Euro in the current year (§ 19 para. 1 UStG). The small business regulation means that you:

• may not separately show VAT on your outgoing invoices,
• do not have to pay VAT to the tax office,
• cannot claim the VAT on your incoming invoices as input tax at the tax office,
• may not state the VAT rate on invoices for small amounts up to 250 Euro.

Important note: Showing VAT or stating the VAT rate on invoices for small amounts would be considered an unauthorised display of VAT. This would mean that you would have to pay the VAT to the tax office, and the recipient of the invoice would not be able to deduct the tax as input tax.

The small business regulation is an option. You also have the option to opt for VAT and then take advantage of the input tax deduction. However, this option, i.e. the waiver of VAT exemption, is binding for five calendar years. If you voluntarily opt for VAT, enter your sales, the VAT received, the input tax paid, and the VAT paid to the tax office in the "Anlage EÜR 2022".

Waiving the VAT exemption is advantageous if you:

• have larger purchases - especially in the start-up year - or high material costs, as only then can you deduct the VAT included in incoming invoices, e.g. purchase of a photovoltaic system.
• provide services exclusively to companies, as the VAT charged is a pass-through item for them and does not increase costs.

Note: Even small business owners must include the tax number or VAT identification number and a consecutive invoice number on their invoices.

Reverse VAT liability according to § 13b UStG:

• For building contractors, subcontractors, and construction workers, a reverse charge mechanism applies: If you receive work supplies and other services related to the construction, repair, maintenance, modification, or demolition of buildings, you must not pay the VAT to the service provider but directly to the tax office. The service provider no longer has to pay VAT and therefore must not show it on their invoice to the client (§ 13b para. 1 no. 4 UStG).

For small business owners according to § 19 UStG, who do not charge or pay VAT, the following applies regarding the reverse charge mechanism:

• If you are a service recipient who also provides construction services on a regular basis (craftsman), the reverse charge mechanism also applies to you. You must therefore pay VAT on the supplies and services received, even if they are for your private residence (§ 13b para. 5 UStG). In this case, you must enter the VAT to be paid.
• If you are a service provider, the reverse charge mechanism does not apply to the service recipient. They do not have to pay VAT (§ 13b para. 2 sentence 4 UStG).

(2022): What right of election do I have with the small business regulation?

How can I correctly determine the private use value of my company car?

If the business use, including journeys between home and business and for trips home as part of maintaining a second household

• is more than 50%, the vehicle automatically becomes necessary business assets.
• is between 10% and 50%, you can choose whether to allocate the vehicle to business assets or private assets (discretionary business assets).
• is less than 10%, the vehicle counts as necessary private assets.

For a vehicle allocated to business assets, you can record all costs in full as business expenses and deduct them for tax purposes. Business expenses also include costs incurred for private journeys and journeys between home and business premises. However, a correction is made for these journeys:

• For private journeys, a private usage value must be taxed, i.e. recorded as business income. Additionally, VAT is calculated on this usage value and added to business income.
• For journeys between home and business and for trips home as part of maintaining a second household, the total costs are proportionately reduced. In return, these journeys are deducted as business expenses using the commuting allowance.

The private usage value can be determined

• (1) using the flat-rate method, if the business usage share is more than 50%.
• (2) using the logbook method.
• (3) using the partial value, if the business usage share is less than 50%.
• (4) Additionally, cost capping may apply when using the flat-rate method.

(2022): How can I correctly determine the private use value of my company car?

Private vehicle use: (1) Flat-rate method for business use

The so-called 1% flat-rate method has only been permitted since 2006 for vehicles that are part of the necessary business assets, i.e., used for more than 50% business purposes. The private usage value can be determined on a flat-rate basis without much effort, using only the list price of the vehicle as a basis. Your individual situation is not taken into account, which is why this method can sometimes be more favourable and sometimes less advantageous than the logbook method.

Private usage value = list price x 1% x number of months

The domestic list price for the company car, including special equipment and VAT, is 30.000 Euro.

The private usage value is: 1% of 30.000 Euro x 12 months = 3.600 Euro per year.

According to the new legal situation, accident costs incurred during a private trip are no longer covered by the flat-rate usage value. Instead, the employer's waiver of cost reimbursement constitutes an additional monetary benefit for you (BFH ruling of 24.5.2007, BStBl. 2007 II p. 766).

VAT: The private usage value determined using the flat-rate method is subject to VAT (§ 3 para. 9a no. 1 UStG). However, not all costs are subject to input tax, e.g., vehicle tax and vehicle insurance, so the usage value can be reduced by 20% on a flat-rate basis, and VAT calculated on the reduced amount. The VAT amount is to be entered in the line "Collected VAT and VAT on free value transfers".

Note that there are special regulations for electric vehicles.

a) General regulation for electric vehicles and plug-in hybrid vehicles

• For private journeys, depending on the vehicle type (pure electric vehicle or externally chargeable plug-in hybrid vehicle) and the list price, 1.0 percent of half or a quarter of the list price is applied monthly as the private usage value. This applies to the purchase or leasing of an electric or plug-in hybrid vehicle between 1.1.2019 and 31.12.2030 (see below under 1b. and 1c.)
• For purchases or leases before 1.1.2019, 1.0 percent of the full list price is applied monthly; however, a reduction by a flat-rate deduction (compensation for disadvantages) is made. In addition to pure electric vehicles, externally chargeable plug-in hybrid vehicles are also eligible (see below under 1d.)
• The flat-rate deduction or compensation for disadvantages also applies to externally chargeable plug-in hybrid vehicles purchased or leased between 2020 and 2022 that do not meet the requirements for the reduced list price (see below under 1d.)
• For journeys between home and work, a surcharge value is added: Normally with 0.03% of the halved or quartered list price per kilometre or - only for employees - with fewer than 15 journeys per month by individual assessment of the actual journeys with 0.002% of the halved or quartered list price per kilometre. This applies to the purchase or leasing of an electric or plug-in hybrid vehicle between 1.1.2019 and 31.12.2030. For purchases or leases of an electric or plug-in hybrid vehicle before 1.1.2019 or if the required standards are not met, the surcharge value is calculated from the full list price; however, a reduction by a flat-rate deduction is made.

The basis for calculating the usage value or withdrawal value is the domestic list price at the time of the vehicle's first registration plus the costs for special equipment including VAT. The list price is the manufacturer's non-binding price recommendation for the vehicle on the German market. The list price is rounded down to the nearest 100 EUR. This rounding is only done after deducting the flat-rate deduction.

b) Concession for pure electric vehicles until 2030

Emissions-free electric vehicles are to be given special concessions in company car taxation: For them, the percentage for the taxable private share is reduced from 0.5 percent to 0.25 percent. Technically, the measure is implemented by quartering the assessment basis. In the 1% flat-rate method, the list price is only applied at a quarter. Specifically, this means:

For pure electric company cars purchased between 1.1.2019 and 31.12.2030: If the vehicle has no carbon dioxide emissions per kilometre driven and the gross list price of the vehicle does not exceed 60.000 Euro, the list price is only applied at a quarter (§ 6 para. 1 no. 4 sentence 2 no. 3 and sentence 3 no. 3 EStG, introduced by the "Act on Further Tax Promotion of Electromobility and Amendment of Other Tax Regulations" of 12.12.2019; supplemented by the Second Corona Tax Assistance Act).

Initially, the limit for the gross list price was 40.000 Euro. This limit was then raised to 60.000 Euro with the Second Corona Tax Assistance Act. The new limit applies retroactively from 1.1.2020 for vehicles purchased, leased, or first made available for private use from 1.1.2019 (§ 52 para. 12 sentence 2 EStG).

If the list price of a pure electric vehicle exceeds 60.000 Euro, it is applied at half for the taxation of private use. It can be assumed that the legislator had the expensive Tesla models in mind with this limit, which they did not want to additionally promote. Here, the half assessment basis remains.

c) Gradual reduction of benefits for plug-in hybrid vehicles

For externally chargeable plug-in hybrid vehicles, the halved assessment basis generally applies for the taxation of private use. However, there is a gradual reduction of tax benefits or - in other words - a tightening of the conditions for tax advantages. Specifically, the following applies: 

• For purchases between 1.1.2019 and 31.12.2021, the half assessment basis applies if the carbon dioxide emissions are a maximum of 50 grams per kilometre or the electric range is at least 40 kilometres ("Act to Prevent VAT Losses in Online Trading and Amend Other Tax Regulations" of 11.12.2018). These are the current requirements under § 3 para. 2 no. 1 or no. 2 of the Electromobility Act.
• For purchases between 1.1.2022 and 31.12.2024, the half assessment basis applies if the carbon dioxide emissions are a maximum of 50 grams per kilometre or the electric range is at least 60 kilometres ("Act on Further Tax Promotion of Electromobility and Amendment of Other Tax Regulations" of 12.12.2019).
• For purchases between 1.1.2025 and 31.12.2030, the half assessment basis applies if the carbon dioxide emissions are a maximum of 50 grams per kilometre or the electric range is at least 80 kilometres.

For vehicles that do not meet these requirements but have a higher gross list price than vehicles with a combustion engine, the previous regulation (compensation for disadvantages by reducing the gross list price by flat-rate amounts for the battery system) continues until 2022. This means: For purchases in 2019, the list price or acquisition costs are reduced by 200 Euro per kWh battery capacity, up to a maximum of 7.000 Euro. For purchases in 2022, the list price or acquisition costs are reduced by 50 Euro per kWh battery capacity, up to a maximum of 5.500 Euro.

d) Compensation for disadvantages in old cases and for vehicles that do not meet the requirements

For purchases or leases of an electric vehicle or plug-in hybrid vehicle before 1.1.2019 and for externally chargeable plug-in hybrid vehicles that do not meet the requirements mentioned under point 1c, there is a complicated calculation to determine the list price relevant for the one-percent rule: The (full) list price is to be reduced by a flat-rate deduction, limited to a maximum deduction amount, due to the costs for the battery system included in it (§ 6 para. 1 no. 4 sentence 2 EStG in conjunction with § 8 para. 2 sentence 2 EStG).

The reduction and maximum amount depend on the vehicle's year of purchase. The kWh value of the vehicle can be found in the registration certificate in field 22.

For purchases up to 31.12.2013, 500 Euro per kWh of battery capacity, max. 10.000 Euro, is deducted from the list price. These amounts decrease by 50 Euro per kWh or 500 Euro per year for purchases in subsequent years. The tax promotion applies to vehicles purchased by 31.12.2022 (§ 52 para. 16 sentence 11 EStG).

Important: The concession applies only to income tax, not to VAT.

(2022): Private vehicle use: (1) Flat-rate method for business use

Private vehicle use: (2) logbook method

With the logbook method, the value of private use can be calculated using the actual costs proportionate to private journeys. The taxable value of use is the part of the total costs for the company car that corresponds to the proportion of private journeys in the total mileage. To determine the private use share, you must keep a "proper" logbook in which all journeys are recorded without gaps. Enter the calculated value of use.

Private use value = Total costs x Private use share

Private use share = Kilometres driven privately (according to logbook) : Total mileage x 100

Note: Kilometres driven privately do not include journeys between home and work or journeys home as part of a second household.

Example: You drive 25,000 kilometres a year with the company car, of which 10,000 km are for private journeys according to the logbook. The total costs are 8,000 Euro (excluding VAT) per year.

The private share is: 10,000 km : 25,000 km x 100 = 40 %
The private use value is: 40 % of 8,000 Euro = 3,200 Euro.

The private use value determined using the logbook method is also subject to VAT (§ 3 Abs. 9a Nr. 1 UStG). You can deduct costs not subject to input tax from the total costs in the proven amount and only calculate VAT on the reduced value of use.

Costs not subject to input tax include operating costs such as car insurance, vehicle tax, broadcasting fee, garage rent, ADAC membership, and costs incurred abroad. Interest on loans is also included. Depreciation is also included if no input tax deduction was possible on the purchase costs, e.g. when buying privately or transferring from private assets.

Please note that there are special regulations for electric and hybrid electric vehicles. In accordance with the halving or quartering of the assessment basis in the 1% flat-rate method, the depreciation (AfA) to be taken into account must be halved or quartered. If you use a leased or rented vehicle, the leasing or rental costs must be halved or quartered accordingly. This applies to the purchase or leasing of an electric or hybrid electric vehicle between 1 January 2019 and 31 December 2030. 

The exact regulation has unfortunately become very complex.

(2022): Private vehicle use: (2) logbook method

Private use of company car: (3) Pro rata value for business use of less than 50%

Wird das Fahrzeug zu weniger als 50 % und mehr als 10 % betrieblich genutzt, kann das Fahrzeug zwar weiterhin dem gewillkürten Betriebsvermögen zugeordnet werden. Doch die Privatnutzung ist seit 2006 mit dem sog. Teilwert zu ermitteln und zu versteuern (§ 6 Abs. 1 Nr. 4 Satz 2 EStG).

Das bedeutet: Der private Nutzungswert ist mit den anteiligen tatsächlichen Kosten anzusetzen - wie bei der Fahrtenbuchmethode. Allerdings muss der betriebliche bzw. private Nutzungsanteil nicht durch ein "ordnungsgemäßes" Fahrtenbuch mit seinen strengen Bedingungen nachgewiesen werden, sondern kann durch formlose Aufzeichnungen glaubhaft gemacht werden. Wie bei der Fahrtenbuchmethode tragen Sie den Nutzungswert in Zeile 19 und die zugehörige Umsatzsteuer in Zeile 16 ein.

Privater Nutzungswert    =   Gesamtkosten  x  Privater Nutzungsanteil

Privater Nutzungsanteil  =   Privat gefahrene Kilometer (lt. Aufzeichnungen)  :  Gesamtfahrleistung  x  100

So ermitteln Sie den Teilwert:

• Zunächst rechnen Sie alle Fahrzeugkosten zusammen, z.B. Abschreibung, Versicherungsbeiträge, Kraftstoff (Benzin, Diesel, Benzinkosten, Tankkosten, Tankquittung, Tankfüllung, Tanken, Spritkosten), Kfz-Steuer, Inspektions- und Reparaturkosten usw. Diese sind als Betriebsausgaben absetzbar.
• Dann ermitteln Sie den privaten Nutzungsanteil, indem Sie die gefahrenen Privatkilometer zur Gesamtfahrleistung ins Verhältnis setzen.
• Schließlich multiplizieren Sie die Gesamtkosten mit dem privaten Nutzungsanteil. Der so ermittelte Wert stellt den Entnahmewert dar, der zu versteuern ist.
• Da die 1 %-Methode nicht mehr zur Anwendung kommt, können auch die Fahrten zwischen Wohnung und Betrieb nicht mehr mit 0,03 % des Listenpreises oder die Heimfahrten im Rahmen der doppelten Haushaltsführung nicht mehr mit 0,002 % des Listenpreises von den Gesamtkosten abgezogen werden. Vielmehr müssen die Gesamtkosten um die anteiligen Kosten für diese Fahrten gekürzt werden. Im Gegenzug kann die Entfernungspauschale als Betriebsausgaben abgezogen werden.

(2022): Private use of company car: (3) Pro rata value for business use of less than 50%

Private vehicle use: (4) Cost ceiling with the flat-rate method

When applying the 1% flat-rate method, it may occur that the private usage value is higher than the actual vehicle costs. This is particularly possible if the vehicle has already been depreciated and therefore no depreciation can be applied, if it is a used vehicle, or if the vehicle is leased. In this case, cost capping may be considered (in line 19).

• Actual costs include ongoing operating costs, depreciation, and interest on debt.
• The total actual costs are first reduced by the travel allowance for journeys between home and work, as this deduction is generally available to you.
• The remaining amount of the total costs is then compared with the flat-rate usage value and applied as cost capping.

Example:
For a company car with a list price of 40.000 Euro (including VAT), total costs of 6.000 Euro were incurred. The car was used on 200 days for journeys between home and work (distance 20 km).

VAT: In the case of cost capping - if the private usage value according to the flat-rate method is limited to the total costs - you do not need to use the total costs as the basis for VAT, but proceed as follows:

• First, deduct the costs that were not subject to input tax from the total costs. These are operating costs such as car insurance, car tax, broadcasting fee, garage rent, ADAC membership fee, and costs incurred abroad. Interest on debt is also included. Depreciation is also included if no input tax deduction was possible on the purchase costs, e.g. when buying from a private individual or transferring from private assets. What remains are the total costs with input tax.
• Then determine the private usage share. You may estimate this based on suitable documents. If such documents are not available, you must set the private usage share at a minimum of 50%. Journeys between home and work are not part of the private share but the business share.
• Finally, apply the total costs with input tax at the private usage share as the basis for VAT, and calculate 19% VAT on this.

Example:

Note: Some cash-basis taxpayers previously used the following tax model: They leased their company car, made a high special leasing payment in the first year, fully deducted it as a business expense, and then determined the private share using the 1% rule in the following years. Due to the so-called cost capping, this often resulted in only a very small private share for car use.

After the tax authorities and some tax courts had already rejected the model, the Federal Fiscal Court has now also refused to recognise the tax model (BFH rulings of 17.5.2022, VIII R 11/20, VIII R 21/20, VIII R 26/20). The following example illustrates the problem:

A freelancer leases a car with a gross list price of 120.000 Euro, starting in December 2015 (term 36 months). In the first year, a special payment of 30.000 Euro plus VAT is agreed. The monthly leasing rates are then only 350 Euro plus VAT. The freelancer calculates his profit using the cash method and fully deducts the special leasing payment in 2015 as a business expense. In 2016 and 2017, he chooses the 1% rule and would therefore have to tax 1% of the gross list price per month (annually 14.400 Euro) as a private withdrawal. However, he applies the cost capping and only taxes a private share of, for example, 6.000 Euro per year. This arrangement was regularly accepted by many tax offices in the past. However, at some point, the tax authorities found it "too much", as more and more self-employed individuals were exploiting it for tax purposes. As a result, the tax authorities decided not to accept the model further (OFD Karlsruhe, VASt Aktuell 6/2018 of 1.8.2018; decree of the Hamburg tax authority of 8.11.2018, S 2177- 2018/001 - 52).

For the example mentioned, this means: The special leasing payment must be spread over the term for the cost capping check. Therefore, in 2015, only 1/36 of the special leasing payment is to be included for cost capping purposes. In 2016, 12/36, in 2017 also 12/36, and in 2018 11/36 of the special leasing payment are to be applied. The cost capping in 2016 would therefore not be 6.000 Euro, but 6.000 Euro + 10.000 Euro = 16.000 Euro, so 14.400 Euro would be taxed as a private share. To avoid misunderstandings: The special leasing payment itself usually remains deductible as a business expense when paid; this is only about cost capping.

The Federal Fiscal Court considers the tax authorities' view to be correct. The cost capping regulation may be interpreted in the sense of the tax authorities. Any taxpayer who uses a company car for private purposes can also avoid the 1% rule by keeping a logbook.

(2022): Private vehicle use: (4) Cost ceiling with the flat-rate method

How is private use of a telephone correctly taken into account?

If you fully deduct telecommunications expenses, such as telephone, fax, and internet, as business expenses, you must determine the private usage share and record it as business income, as well as pay VAT on it.

The valuation of private withdrawals is based on the so-called partial value (§ 6 Abs. 1 Nr. 4 EStG). Partial value here refers to the actual cost price. However, as it is very difficult to accurately quantify the extent of private use, the proportionate telephone costs can be estimated (OFD Koblenz dated 10.1.2002, S 2121 A). In Baden-Wuerttemberg, for example, the tax authorities use a guideline value of 360 Euro per year for the private telephone share.

Alternatively, in our opinion, it is possible to only enter the business share of the telephone costs as business expenses and to completely forgo an entry under business income.

Traders, freelancers, and farmers are at a significant disadvantage compared to employees regarding private telephone use. For employees, the use of business telephones, fax machines, computers with internet is tax and social security-free, regardless of the extent of private use (§ 3 Nr. 45 EStG). Unfortunately, this generous tax exemption does not apply to the self-employed.

According to the tax authorities, applying this exemption would allow private expenses to be deliberately shifted into the tax-relevant business area, thereby obtaining unjustified tax relief (BMF letter dated 6.5.2002, DStR 2002 p. 999). This view has been confirmed by the Federal Fiscal Court (BFH ruling dated 21.6.2006, XI R 50/05).

Municipal office holders (council members, district councillors) are better off from 2015 if the district or municipality provides them with tablet PCs or similar devices: From 2015, the private use of data processing and telecommunications devices is also tax-free for persons performing voluntary public service and receiving an expense allowance from public funds in accordance with § 3 Nr. 12 EStG (§ 3 Nr. 45 Satz 2 EStG).

(2022): How is private use of a telephone correctly taken into account?

How should private withdrawals of goods be valued?

If you withdraw business goods and fixed assets for private purposes, please state the corresponding book value. The same applies to non-cash benefits to employees of the company, unless they are tokens of appreciation with a value of less than 60 EUR. 

In certain industries, the withdrawal of foodstuffs for private consumption can be calculated using flat rates. These are announced by the tax authorities and eliminate the need to record a large number of individual withdrawals. The flat rates are annual values for one person. For children up to the age of 2, no flat rate is applied; up to the age of 12, half of the respective value is to be applied.

(2022): How should private withdrawals of goods be valued?