Tax treatment when dentist is a freelance employee of a GmbH
November 16, 2009 | 60,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Medical Law / Tax Law
I request a review of the following situation:
I, a dentist, intend to work as an independent contractor for a GmbH (the shareholders/ managing directors are not dentists) as a dentist:
Business purpose of the GmbH includes: dental services of all kinds
The "dental services" are to be provided by dentists, including myself, as independent contractors.
1. I bill (private) patients independently (as there would be no reimbursement from private health insurance otherwise) and assign my fee claims to the GmbH. The patient's consent is of course a prerequisite.
2. In return, I receive a monthly salary.
The GmbH covers all expenses (room costs, personnel, consumables, laboratory, etc.)
This arrangement was deemed acceptable by my previous tax advisor. Also by a medical lawyer.
Now I have changed tax advisors. The new tax advisor sees potential VAT issues. It may be necessary for me to pay a VAT-taxable fee to the GmbH, as the GmbH provides me with infrastructure and I bill patients directly.
He sees a problem in that I - and not the GmbH - bill patients directly, meaning that I generate the revenue instead of the GmbH. Even though it has been assigned.
Since tax law follows civil professional law, he asked me to have the plan reviewed in this regard.
To clarify:
It is not intended for me to rent or lease premises etc. from the GmbH. Otherwise, there would be no reason for me to assign my claims against patients.
The intention is an "employment relationship," through which I receive a fixed salary. The fact that I bill patients instead of the GmbH is because only a dentist can bill for dental services, and they are only reimbursed in that case.
I do not have approval from health insurance funds. It is "only" about private patients.
Kind regards, A. Mirwald
Dear Mr. Mirwald,
Thank you for your inquiry!
Taking into account your information, I would like to summarize my answer to the question you have asked as follows:
First and foremost, your inquiry is not about offices, but about pure tax law with a slight corporate law aspect.
I do not quite understand your statement that you should pay a turnover tax to the GmbH, as ultimately, it is the decision of the shareholders of the GmbH or the managing director whether to charge you a fee or not. There are no tax law issues in this regard.
If I have misunderstood this point, please let me know so that I can provide a final answer within the scope of the follow-up option.
Your tax advisor probably sees the same problem as I do, namely that on one hand, you invoice independently, but on the other hand, you receive a salary, which could indicate your classification as an employee. This would directly lead to the issue of so-called bogus self-employment, which could cause problems for both the GmbH and yourself.
To avoid this issue and the associated difficulties, I also believe it would be sensible for you to continue invoicing yourself, as you mentioned that the refundability of your services is only guaranteed this way. However, you would not assign these amounts to the GmbH, but only pay a fee for the use of their facilities.
While this fee would be subject to turnover tax, both you and the GmbH could generally claim it in the turnover tax pre-registration, so that the same result could be achieved - you could continue to invoice and no assignment of the fee claims would be necessary.
I hope my explanations have been helpful. Please feel free to contact me through the follow-up option on this platform or via my email address if you have any further questions.
I would like to conclude by pointing out the following: The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the facts. Adding or omitting relevant information could lead to a completely different legal assessment.
I wish you a pleasant Monday afternoon and a good start to the week!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax.0471/57774
