I. Legal Background

For VAT purposes, the entrepreneurial status within the meaning of the German Value Added Tax Act (Umsatzsteuergesetz – UStG) is of central importance. If the entrepreneurial status is to be affirmed, the services rendered are subject to VAT (insofar as they are performed in Germany and are not tax-exempt). Consequently, invoices with a separate VAT statement must be issued and VAT returns submitted. At the same time, the so-called input tax deduction (Vorsteuerabzug) can be claimed for expenses incurred in connection with this activity.
Despite the central importance of entrepreneurial status, the legal requirements are manageable, at least on the basis of the wording of the law: according to § 2 para. 1 sentence 1 UStG, a taxable person is a person who independently carries out a commercial or professional activity. However, whether these requirements are met with regard to the activities of supervisory board members was disputed in the past. In particular, it was questionable whether a supervisory board member performs his/her activities independently.
As already outlined in our newsletter article of 1 October 2021, in its ruling of 27 November 2019 (V R 23/19, BStBl. II 2021, 542) the Federal Fiscal Court (Bundesfinanzhof – BFH) issued a comprehensive opinion on the entrepreneurial status of members of a supervisory board. Contrary to its previous opinion, the BFH has ruled that a supervisory board member with a mere fixed remuneration is not to be regarded as self-employed within the meaning of § 2 para. 1 UStG and to that extent as a non-entrepreneur due to the lack of economic risk. Accordingly, the economic risk, or more precisely the compensation risk, is decisive.
In a BMF letter dated 8 July 2021, the tax authorities responded to the BFH’s change in case law by adopting the BFH’s view (see our newsletter article dated 1 October 2021). In practice, however, the instructions of the tax authorities led to further questions and uncertainties.

II. Principles for the examination of the entrepreneurial status

As a result of the amended BFH case law from 2019, it is no longer possible to make a generally valid statement about the entrepreneurial status of supervisory board members. Instead, the entrepreneurial status must be determined in each individual case on the basis of the type or composition of the agreed remuneration. A distinction must be made between three cases.
If only a fixed remuneration is paid, the supervisory board member does not bear any remuneration risk and is therefore not engaged in entrepreneurial activities. Consequently, the remuneration is to be calculated without VAT. If, on the other hand, the supervisory board member receives only variable compensation and thus bears the full compensation risk, he or she qualifies as an entrepreneur within the meaning of the UStG. In these cases, the services rendered must be invoiced with VAT. Unless the small business regulation pursuant to § 19 UStG applies.
If both fixed and variable remuneration components are paid, the ratio is decisive. If the variable compensation component accounts for at least 10% of the total compensation, the entrepreneurial status of the supervisory board member is to be assumed, as it is then assumed that the required entrepreneurial compensation risk exists. In practice, however, this 10% limit has led to further questions. Among other things, the relevant point in time for examining the 10% limit was unclear (forecast compensation parameters or retrospectively).

III. BMF letter of 29 March 2022

According to the new BMF letter, all remuneration paid to the supervisory board member within a fiscal year is to be included in the calculation of the 10% limit. The decisive time period is no longer the calendar year, but the fiscal year. In the view of the tax authorities, the meetings scheduled at the beginning of the fiscal year are to be taken into account. If, for example, a supervisory board member is unable to attend a supervisory board meeting due to illness, this does not necessarily have consequences for the entrepreneurial status. However, subsequent changes are to be explicitly disregarded. Consequently, good planning is required at the beginning of each financial year. The clarification regarding the time of determination of the 10% limit and the reference to the planned meetings creates planning security and is appreciated. However, it is still questionable whether the 10% limit set by the tax authorities will stand up to legal examination.
In addition, the tax authorities have commented on the relevant date of performance, i.e., the date on which the services of a supervisory board member are deemed to have been rendered. For general activities of a supervisory board member, the relevant date is the end of the company’s financial year. In this respect, the date of the annual general meeting has been replaced as the date of performance. However, supervisory board members have to observe other performance dates concerning their activities. If reimbursement of expenses and attendance fees are paid for an actual participation in a supervisory board meeting, the date of the supervisory board meeting is deemed to be the date of performance for VAT purposes. In the case of supervisory board members who are active as entrepreneurs, this can affect the obligation to report revenues and should therefore be reviewed in each individual case.
It is also important for practice that the adjusted regulations are to be applied in principle in all open cases. However, there is a transitional provision according to which the previous regulations can continue to be applied to all those activities that have been carried out in a financial year of the company that started before 1 January 2022. In such cases, the entrepreneurial status can therefore be assumed even if the 10% limit has not been exceeded.

IV. Consequences for the practice

The recently published BMF letter dated 29 March 2022 facilitates the handling of the principles concerning the entrepreneurial status, published under § 2.2 para. 3a UStAE of the German VAT Application Decree (Umsatzsteuer-Anwendungserlass – UStAE). The additions and clarifications by the tax authorities emphasise that the entrepreneurial status should be well planned. In cases where the fiscal year began before 1 January 2022 and will end during 2022, action may be required under certain circumstances due to the updated principles. Because it must be decided in advance whether the entrepreneurial status should or can still exist for the following fiscal year. For all other cases where the fiscal year has been running since 1 January 2022, the updated principles apply without restriction. In these cases, changes can only be implemented for the next fiscal year.