Free-of-charge management
September 1, 2009 | 100,00 EUR | answered by Ginster Frank
GmbH: There are four shareholders involved, each with an equal share. Two of them are managing directors. One of them works without payment, while the second managing director does not receive any salary for the actual management duties, but instead drives the goods with a truck and invoices the GmbH for this service. Additionally, he is self-employed. What should be considered in this situation? Is this arrangement appropriate, or should a salary be paid for the actual management duties?
Dear Madam,
Dear Sir,
Based on your information and in light of your minimum stake, we would be happy to answer your question as part of an initial consultation.
The answer will be given based on the facts presented. If the information differs from the actual circumstances, this may lead to a different outcome.
1. Free business management
In principle, a GmbH is not required to pay its managing directors a salary. However, problems often arise later on when a salary is eventually paid.
The question then arises: "why wasn't a salary paid back then, but is now?"
Therefore, a shareholder resolution should be passed today, stating special reasons why the management does not receive compensation for their work today. One reason could be, for example, the tight liquidity situation in the start-up phase.
Additionally, it could also be decided that salaries will be paid once the situation has improved, or that the current amount of 0.00 euros will be increased to a certain amount x. A specific timeframe does not need to be mentioned.
2. Service provision (truck transport)
The exchange of services with the GmbH is generally not objectionable. However, the following should be noted:
The transactions between the shareholder-managing director and the GmbH must be carried out as if they were between him and a third party. This means, were offers made beforehand? Is there perhaps a framework agreement? Are invoices properly issued?
If there are such externally comparable circumstances that can also be understood by third parties (tax auditors), this cannot be construed as a hidden profit distribution.
We assume that the managing director also offers these services to third parties.
It is important to adhere to the so-called prohibition of retroactivity. This means that clear regulations must be made in advance before the company pays a shareholder-managing director. Otherwise, there is a risk of a hidden profit distribution.
If you have any further questions, please feel free to contact us by phone at 02232 / 93 45 0.
Best regards,
Frank Ginster
Tax consultant
