According to § 3b EStG, employers can pay surcharges for holiday and night work in whole or in part, depending on the amount, tax-free. Many GmbH shareholders are employed by “their” company as managing director and thus employees in the sense of social security law. However, the BFH has already put a stop to corresponding designs many years ago, qualifying holiday and night surcharges as hidden profit distributions (vGA).
Principle 1: Tax-free holiday and night surcharges according to § 3b EStG
Anyone who has to work on Sundays and public holidays or at night is exposed to special stresses. The legislature would like to pay at least part of this and with § 3b EStG therefore enables the tax-free payment of surcharges on the basic wage. “Basic wage” is the agreed salary exclusive supplements, i.e. the hourly or daily wage agreed for regular working days.
The tax-free holiday and night surcharges are capped in height. Specifically, amounts are tax-free only if the following limits do not exceed:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.