In addition to income, corporate and sales tax, commercial companies are also regularly subject to business tax. Here, the legislator focuses on the "commerciality" of the company, but at the same time works with fictions. The tax object of the trade tax is regulated in the correspondingly named § 2 GewStG – let’s take a closer look at the norm with its subtleties!
A “tax object” in tax law generally means the person or institution subject to taxation as such. The subject of business tax is accordingly a business enterprise, in income tax it is natural persons and in corporate tax legal persons. Each of these laws regulates the tax subject matter in §§ 1 or 2.
§ 2 (1) sentence 1 and 2 GewStG is relevant for business tax. Accordingly, all commercial enterprises within the meaning of § 15 EStG are subject to taxation. Excluded are accordingly freelance activities (§ 18 EStG) and many areas of asset management (for example §§ 20 and 21 EStG). They already lack the basic requirement of a commercial operation.
In § 2 (1) sentence 1 GewStG, the legislature explicitly refers to a “standing” commercial enterprise. This is clearly distinguishable from – for example – preparatory and follow-up actions. On the contrary, the business enterprise is only established when it participates visibly in economic traffic to the outside (H 2.1 paragraph 1, keyword “standing business enterprise” GewStH). This is regularly the case when a permanent establishment exists (§ 12 AO).
The tax subject of the trade tax is in addition to original commercial enterprises (§ 15 paragraph 2 EStG) also
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.