BFH rejects uniform profit determination for joint medical practice

Munich (jur). A supposed partner of a freelance practice is not a co-entrepreneur, if its profit share is measured only on the own turnover and it is excluded from important powers of the management. The Federal Finance Court (BFH) in Munich ruled on a joint medical practice published on 30 March 2016 (Ref .: VIII R 63/13). According to this, the uniform determination of profit does not then include this (if appropriate, a dummy) shareholder.

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In the dispute, two doctors in the Rhineland in 1998 had taken a colleague into their group practice. The articles of association gave her the opportunity to join one third of the group in 2001; she did not use it. The fee share of the doctor continued to depend only on their own sales. It received up to 102,260 euros from it 37 percent, 42 percent of other revenues.

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

After a tax audit in 2009, the tax office moved away from it. The fee share of the doctor should be considered separately in the context of her own income tax assessment. The rest of the profits would then be uniform for a "bipartite" society. The tax office then half-estimated these two other doctors, which led to a higher tax burden for them.

Like the Finanzgericht Düsseldorf, the BFH rejected the lawsuit of the doctors. Even if one views the doctor as a shareholder with a share of "zero" in civil law, she should not be treated as a co-entrepreneur for tax purposes. Because of large parts of the management, such as the decision on investment, they had been excluded.

In addition, she had no real profit sharing, but only received a dependent on their own sales compensation. Their loss liability was limited to their fees. A participation in the business assets did not exist, and also a participation in intangible "hidden reserves" can not be derived from the articles of association. The fact that the doctor had the option of a regular participation does not change that, according to the BFH in his judgment of 3 November 2015, now published in writing. (Mwo / fle)