BFH rejects uniform profit determination for joint medical practice

BFH rejects uniform profit determination for joint medical practice

Munich (jur). A supposed partner in a freelance practice is not a co-entrepreneur if his share of the profit is only measured by his own turnover and he is excluded from important management powers. The Federal Finance Court (BFH) in Munich decided this with a judgment published on March 30, 2016 on joint medical practice (Az .: VIII R 63/13). According to this, the uniform determination of profits does not include this (possibly bogus) partner.

In the event of a dispute, two doctors in Rhineland had taken a colleague into their joint practice in 1998. The social contract gave her the opportunity in 2001 to start a third in community practice; but she made no use of it. The doctor's fee portion continued to depend only on her own sales. It received up to 102,260 euros, 37 percent of which, and additional sales 42 percent.

In her tax returns, the group practice treated her colleague as a co-entrepreneur. According to the application, the tax office initially determined the profit uniformly for the entire “tripartite” group practice and then divided it by three.

After an audit in 2009, the tax office moved away. The doctor's share of fees should be considered separately in the context of her own income tax assessment. The rest of the profit can then only be determined for a "two-tier" company. The tax office then assigned half of these to the other two doctors, which led to a higher tax burden for them.

Like the Düsseldorf Financial Court, the BFH now dismissed the doctors' complaint. Even if you see the doctor under civil law as a partner with a participation of "zero", she is not to be treated as a co-entrepreneur for tax purposes. Because it was excluded from large parts of the management, such as the decision about investments.

In addition, they had no real profit sharing, but only a remuneration dependent on their own sales. Her liability for loss was limited to her fees. There was no participation in business assets, and participation in intangible "hidden reserves" could not be derived from the partnership agreement. The fact that the doctor had the option of regular participation does not change anything, according to the BFH in its judgment of 3 November 2015, which has now been published in writing. (Mwo / fle)

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