Marginally employed spouse – transfer – car – permissible?
For a marginal employment relationship (mini-job)
special regulations apply: If the salary does not regularly exceed 450 euros per month, a flat tax rate of 2% of the salary is taken into account for the purposes of income tax; special contribution rates apply in some cases for social insurance.
In principle, within the scope of
of a marginal employment relationship, the employee may also be provided with a company car for private use, which is taxed according to the 1% rule. The Cologne Fiscal Court addressed the question of whether the combination of both regulations (marginal employment and 1% regulation) is also permissible if the employment relationship is that of a spouse. In one case in dispute, the monetary benefit from the private use of the car was offset against the remuneration from the marginal employment, with only a monthly salary of 15 euros ultimately being paid. The court ruled that this agreement stood up to an arm’s length comparison and thus the spousal employment relationship was to be recognized. The assessment must also take into account the extent of actual business use, e.g. for errands, and the value of the vehicle. The employer could therefore take into account the expenses for the passenger car and his spouse’s wages as business expenses.
Also the circumstance,
that the spouse was allowed free and unlimited private use without cost sharing within the scope of the mini-job did not play a role for the court. This was also not unreasonable because the wage share determined according to the 1% rule was independent of the amount of privately driven kilometers. However – as the court also concedes – there is no general rule of experience in which cases the provision of a car within the scope of a marginal employment relationship is not (or no longer) customary.
As an appeal has been lodged against the decisions of the Cologne Fiscal Court in both cases, it remains to be seen how the Federal Fiscal Court will rule on this issue.
(Further comments & information on this can be found in our information letter 08/2018 under the item 7.)