How can I become a freelance filmmaker

Freelance job or trade?

...

 

If it is clear that everything a woman does on a freelance basis is artistic, then she is fine and has no trouble with organizations like the IHK. But you often dance at many weddings at the same time, maybe do a little merchandising, maybe even with an internet shop. Then there is a risk that the entire activity will be classified as commercial. And that's why the distinction is so important.


If a woman wants to reduce the risk, it makes a lot of sense to separate the commercial area very clearly into a separate legal form, e.g. in a basement.

If a boss is active in a managerial and responsible manner on the basis of her own specialist knowledge, the involvement of professionally trained employees does not lead to a classification as a trade. However, it must retain technical responsibility for each individual order. Example: a freelance English translator can safely purchase the services of a limited number of English translators, but not translations from Swahili that she cannot speak herself.

 

 

Why is the question important?
 
Tradespeople need to be unlike freelancers
 
1 register your trade, apply for a trade license,
2 pay business tax,
3 Do bookkeeping according to specifications, i.e. double-entry bookkeeping, at least draw up a tax balance sheet,
4 become a member of the IHK,
5 Become a member of the trade association
6 expect safety checks of your operational facilities
 
to 1: costs e.g. 26 € in Berlin,
to 2: Trade tax liability from € 35,000 turnover
Regarding 3: Traders have a balance sheet obligation with an annual profit of € 50,000 or a turnover of € 500,000. Drawing up (a trade balance sheet and) a tax balance sheet. The principles of proper bookkeeping and proper storage bookkeeping are to be observed.
to 4: membership fee
to 5: after opening of business / business registration, membership fee depending on the wage bill
To 6: Trade inspectorate, trade association etc. can carry out tests
 
All those who are shareholders, e.g. in a GmbH, a silent partnership, an AG or a limited company (but not a GbR or a partnership) are already traders in terms of their legal form.
 
If a (also non-profit) association runs a commercial business (e.g. a pub), the association becomes commercially active.
 
 
It is therefore usually desirable to work as a freelancer and not as a trader.
 
Because:
1 trade tax does not apply to freelancers. (Section 18, Paragraph 1, No. 1, EStG - there list of all “free” professions). The Federal Constitutional Court decision of January 15, 2008 - 1 BvL 2/04 has confirmed this. The exemption from trade tax is to be reconciled with the principle of equality.
2 Freelancers and self-employed persons are not affected by the accounting obligation. You can determine your profit with the help of the income-surplus-calculation.
 
Freelancers are not subject to trade tax. Unfortunately, it is difficult to differentiate between freelance work and commercial operations. The crucial decision criterion is the intellectual, creative work that is in the foreground in a freelance activity.
According to § 18 Abs. 1 Nr. 1 EStG belong in particular to the freelance work
independent scientific, artistic, literary, teaching or educational activity
The independent professional activity of doctors, dentists, veterinarians, lawyers, notaries, patent attorneys, surveyors, engineers, architects, commercial chemists, auditors, tax consultants, advisory economists and business economists, sworn auditors (sworn auditors), tax agents, naturopaths, dentists, journalists , Picture reporters, interpreters, translators, guides (so-called catalog professions) and
occupations similar to the catalog occupations.
 
In order for an occupation to be similar to the catalog occupation, it must correspond to it in essential points. This includes that training and the professional activity itself are comparable to the catalog job.
The tax offices outbid each other in the definition of art: z. B. not purely craft-based, previous education, peculiarity, quality, self-creative, creative level. Artistic - and thus freelance - is a performance, among other things, always when it is self-creative, the individual way of looking at things and creative power is expressed and a certain level of creativity is achieved beyond a sufficient mastery of the technology. Participation in festivals and membership in professional associations can also be important.
 
All other activities that are not listed in Section 18 (1) of the Income Tax Act or that count as "similar activities" are of a commercial nature.
 
Artists and publicists are therefore part of the “liberal professions”.
Here are some details about individual artistic professions:

Coaching / trainer: Commercial individual coaching, freelance group training
Emcee, Show and quiz master: Combination of speaking or announcement with an optical performance - artistic performance with sufficient design height BFH, BStBl II 1977 p. 459 and FG Berlin EFG 1990, p. 521
Designer: artistic activity, BFH 23.8.1990 IV R61 / 89 and BFH 14.12.1976, VIII R 76/75
conductor: Freelance, if the performance reaches a certain quality standard BFH August 19, 1982, IV R 64/79
TV announcer: artistic activity, FG Berlin 5.1.1967, I 123/63
Film maker: Freelance occupation, if you participate in all activities yourself BFH 02.12.1980, VIII R32 / 75
Photo designer: artistic activity BFH December 14, 1976 VIII R 76/75
photographer: artistic activity BFH October 7, 1971 IV R 139/66
Graphic artist: artistic activity BFH July 11, 1960 V 96/59
camera operator: Freelance as an independent, current photo reporter (journalist-like) BFH December 17, 1964 IV 223/63; Freelance contributor to the production of films (artistic activity) BFH 7.3.1974 IV R 196/72
Artisans: Freelance occupation (artistic activity), provided that he manufactures objects designed by himself BFH 9/26/1968 IV 34/64, BFH IVR15 / 0 judgment 7/11/1991
Magician (conjurer): Freelance occupation (artistic activity) with sufficient scope, FG Rhineland-Palatinate 13.12.1984 3 K 244/83
Painter: Freelance occupation (artistic activity), if he paints pictures with a personal touch and independent quality as an artistic product, not bound by instructions, FG Berlin 28.5.1974 V67 / 73 and BFH 14.8.1980 IV R 9/77
Makeup artist
is to be classified as commercial according to B 2 HwO. Many are still freelance because they consider themselves to be Make-up artists / make-up artistsdescribe. To here more
Model
: commercial
Fashion designer (advisory): Freelance occupation (artistic activity), if otherwise recognized as an artist BFH October 2, 1968 IR 1/66
Puzzle maker: literary activity FG Düsseldorf 11.12.1970 X 68/69
Broadcaster / presenter: For own creative work (e.g. radio play), BFH October 24, 1963 V 52/61
actor: in the case of commercials only if it is to be assessed as a self-creative achievement; as a rule, advertising is not a freelance work. BFH 11.7.1991 IV R 33/90 Income from advertising films or advertising photos are of a commercial nature. The judgment of April 2, 2008 (Az.:3 K 2240/04) of the Rhineland-Palatinate tax court sees the activity of a commercial speaker as commercial at; Freelance as a voice actor for foreign films, BFH 3.8.1978 / 12.10.1978 VI R 212/75
Stonemason: artistic activity RFH January 25, 1939 VI41 / 39
Dance studio
Ballet freelance, dance school (standard or "fashion" dances) commercial
Dance and entertainment musicians: from a certain quality standard BFH; August 19, 1982
Textile designer: artistic activity BFH November 7, 1963, Düsseldorf District Court October 25, 1966
Tonkünstler (Technician): Artistic activity: FG Berlin 30.9.1986 V 386/85
Ecclesiastes: Freelance, if the speaker does not use speech templates in the majority of cases BFH 29.8.1981 I R 183/79
Make-up artist: artistic activity, FG HH August 19, 1992 III 374/88
Commercial photographer: when a certain level of design is reached, BFH December 14, 1976
Advertising writer: literary activity with independent content, BFH May 14, 1958 IV 278/56
Copywriter: literary activity FG Nürnberg 2.7.1980 V 193/79
wizard: can be artistic activity in individual cases, FG Rhineland-Palatinate, FG Lower Saxony
(partly based on: Engel / Oberlander, see below)
 
 
Whether it is an artist is less controversial with actors, but with artists (commercial BFH 16.3.1951), magicians, jugglers, entertainers, etc., therefore enter “actor” from the start under “job title” on the income tax declaration, then there are none, otherwise many problems. Theater is not a trade. Puppeteers in the style of "Kaspar in a tent on the festival meadow", on the other hand, as well as circus.
 
Actors who at the fair or work as a photo model are provided by agencies urged to register a trade - because the agencies want to avoid the problems of bogus self-employment. If you work as a propagandist without being bound by instructions, the registration is correct. If you work as an artist and independently, it is wrong.
 
The Travel business card is suitable for self-employed, entertaining activity like the showman.
 
 
Theater café, bistro, discotheque in the theater or the like can trigger trade tax liability if this branch of business takes on a considerable scope. If the scope is small, a separate EÜR and the payment of VAT are sufficient.
 
Leasing or renting the gastronomy through a cultural enterprise usually only makes sense for non-profit associations - for them the lease income is usually not commercial income, but belongs to the assets.
 
In the above-mentioned ruling, the Federal Constitutional Court declared that the entire income of a partnership is deemed to be income from commercial operations and is therefore subject to trade tax if the company only partially carries out a commercial activity. It is therefore important that, for example, a GbR that works artistically and freelance, establishes a second, separate GbR for the second, commercial activity (merchandising, income from sponsoring). Only 3% "auxiliary business" (sale of the decommissioned company car) are tolerated by the tax offices in most cases.
For example, a writer can publish his book himself and sell it at readings if self-publishing and self-distribution are limited to a “function serving as a writer” and do not constitute “a new livelihood”. "The mere utilization of own written products within the framework of the usual", according to the judgment of the BFH of May 11, 1976 (AZ VIII R 111/71), "is. . . usually assigned to freelance work ”. Only when the "organizational facility created for this purpose" goes beyond this and "represents a new basis for income" or when the sale becomes a "commercial mass distribution" does the author become a trader.
 
 
Deregistration business
If you have mistakenly registered a theater as a business, it may be difficult to deregister it again. Then women should try the following argument: 'We are not a theater with guest performance, we are a group of actors who are self-creative, but not as dealers. And actors are freelancers. According to the definition of the BFH, actors belong to the occupations (artistic activity): BFH judgment of 14.8.1980 IV R 9/77 and of 29.7.81 IR183 / 79 and Income Tax Act § 18 Abs 1 Nr. 1 ’. And get help from the cultural office.
Business de-registration according to § 14 GewO or § 55 c GewO can be done in Bavaria with the following form, otherwise look it up on the website of the municipality, the district, the federal state
http://www.stmwivt.bayern.de/pdf/wirtschaft/GewA3.pdf
 
The business deregistration usually has to be done in person, because a fee usually has to be paid, especially if a woman wants a confirmation. In the business de-registration, insert "erroneous registration" as the reason and the date of business registration as the date.
 
Then a form comes from the tax office who want to know whether something was still earned when the company was dissolved (sales of company inventory, etc.).
For this purpose, at least an income / surplus calculation must be created. The tax office can waive the submission of a final balance sheet if it can be shown that nothing will be lost to the state.
 

Business tax:
 
Business tax depends on profit. Exemption for partnerships or sole proprietorships € 24,500, for associations € 5,000. Trade tax, like sales tax, is paid by the company, not by the partner. Under this limit, no double bookkeeping, no entry in the commercial register, little or no contribution to the IHK.
The change to this double bookkeeping does not have to take place until the tax office requests it. In the case of non-profit associations, these limits only apply to taxable commercial businesses.
In expensive Frankfurt / Main, women paid almost 15% trade tax on a profit of € 100,000. With a tax rate of 400%, the trade tax is just under 30%, an average of around 28%.
 
 
Literature:
 
Detzel, Thomas, Engel, Stefan / Oberlander, Willi and others:

Freelance job or trade? An orientation aid for founders, Institute for Liberal Professions, Nuremberg 6th edition (as of January 2006) € 13, Institute for Liberal Professions, [email protected]

more also on "Separate activities?"

 


This work is licensed under a Creative Commons Attribution - Noncommercial - No Derivatives 4.0 International License. All rights: Stefan Kuntz

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