Weitere Artikel der Ausgabe Winter 2021

Admission of new partners to a joint practice

Illustration

Commercial infection

If physicians are planning to join a group practice in the new year, they should note the following special tax features: If physicians join together with other freelancers to form a civil law partnership (GbR) or other partnership, and if they are active in this combination partly commercially and partly as freelancers, the commercial part necessarily leads to an infection of the freelance activity by the commercial one (Section 15 (3) No. 1 of the German Income Tax Act (Einkommensteuergesetz-EStG)). In order to avoid commercial infection, it must be demonstrated in case of doubt that all physicians entering a joint practice as partners bear co-entrepreneurial risk and co-entrepreneurial initiative.

Co-entrepreneurial risk/co-entrepreneurial initiative

The physician bears a co-entrepreneurial risk if he/she receives a certain percentage of the sales generated by him/herself, bears a risk of loss, participates in the hidden reserves and is externally liable. Co-entrepreneurial initiative exists if each physician can prevent decisions for which unanimity is agreed upon by means of his/her voting right and is not contractually excluded from the management. It is essential for a GbR that each GbR partner can represent the company alone externally.

FG ruling

In its final decision 7 K 3133/17 (dated July 10, 2019), the Tax Court (FG) of Cologne assumed an entrepreneurial position for a medical group practice if the physician receives a certain percentage of the turnover generated by him/her for the company as remuneration. The dispute was preceded by a tax audit. The auditor objected to the fact that the new physicians joining the GbR only received a share of the sales generated by themselves. However, the tax court, taking into account the overall circumstances, assumed that the plaintiff physicians had income from self-employment.

Status: November 26, 2021

Image: Pixel-Shot - stock.adobe.com

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