For the preparation of the tax balance sheet, the balance sheet drawn up in accordance with commercial law regulations (trade balance sheet) is in principle decisive. However, this so-called principle of decisiveness can be breached in different cases, as a result of which trade and tax balances differ from one another in this respect. We outline the most important principles of accounting in this context.

Professionals may be obliged to keep books and prepare a balance sheet according to different regulations. This obligation regularly arises from commercial law, for example from § 238 (1) HGB for merchants of all industries. Freelancers – such as lawyers, tax consultants and experts – are not obliged to keep books in any case. Commercial law does not contain any special provisions for them.

In addition, § 241a HGB applies: Individual merchants who are obliged to bookkeeping according to § 238 HGB, but achieve less than EUR 600,000 turnover or EUR 60,000 profit, do not necessarily have to balance their accounts. No application is required to apply the simplification scheme.

Over § 140 AO, the commercial accounting obligation is enforced in tax law. So anyone who is obliged to bookkeeping under commercial law also meets this obligation for tax profit determination.

Even if the HGB does not impose an accounting obligation, such an obligation may exist according to § 141 AO. The standard applies only to tax law and concerns traders whose profit exceeded the limit of EUR 60,000 or whose turnover exceeded the limit of EUR 600,000 (analogous to § 241a HGB). The tax office then asks these taxpayers on the basis of § 141 AO for accounting, if they have so far determined their profit by revenue surplus calculation.

The decisiveness principle that is important for us is now to be found in § 5 (1) sentence 1 half sentence 1 EStG. This standard also applies only to professionals, namely those who