The pension insurance obligation results from § 2 sentence 1 No. 9 SGB VI . This means that employees, even if they are not bogus self-employed, have to pay into the pension insurance. The law lists all persons subject to compulsory insurance, including self-employed persons who are similar to employees.
Anyone who does not employ any employees who are subject to compulsory insurance and who work for a long time and essentially only for one client has to pay. An exemption from compulsory insurance is possible upon application.
Consequences of bogus self-employment
Anyone who is self-employed is obliged to report to the pension insurance institution within three months. If this deadline is missed, contributions can be requested from the pension insurance agency. This also applies to young entrepreneurs who receive a grant to set up a company.
The pension insurance checks the bogus self-employment. A regular payment is therefore not a guarantee that you will not be checked or automatically not counted as a bogus self-employed. The bogus self-employment is not a trivial offense and has consequences for both parties involved.
Consequences for the client
Anyone who employs a bogus self-employed person, if discovered, must subsequently meet all liability and payment obligations. This also means that the social security contributions have to be paid retrospectively for up to four years. In addition, there is the tax office with its claims for the retroactive wage tax payment. In addition, the sales tax amounts on the bills of the bogus self-employed become ineffective and thus also the input tax of the client.
Consequences for the contractor
If the bogus self-employed person is exposed, his self-employed status is first ended and he is classified as a regular employee. With all rights and obligations. If it is a business person, the business is deregistered and membership in the Chamber of Commerce and Industry is terminated.
The contractor now receives a salary equal to his previous fee. The employer can deduct the back payments for social security from this. In addition, all invoices now have to be corrected in order to correct sales tax and input tax. Any input tax deduction of the bogus self-employed must be paid back to the tax office.
How do you recognize bogus self-employment?
The federal courts (BSG and BAG) have drawn up various criteria for checking and determining pseudo self-employment, which are used as evidence.
- First of all, of course, we take a look at the adherence to instructions and the integration into the client’s organization.
- In addition, the number of clients and the acquisition behavior as well as the entrepreneurial risk are checked.
- In addition, advertising measures and the market presence of the self-employed also count.
- During the examination, the contracts and the conditions and agreements contained therein are also examined carefully.
Further points have already been discussed in the previous text and should only be addressed briefly again:
- There are no regular employees
- The activity is permanent and essentially only for one client
- The client has employees who perform the same activities as the self-employed
- There is no entrepreneurial activity at your own risk.
- The self-employed does the same job for the client as before as his employee.
Status determination procedure
The pseudo self-employment can be determined legally for all parties involved in a status determination procedure.
There are two variants:
- With the optional status determination procedure , either the employer or the employee can submit an application for a determination to the clearing house of the German Federal Pension Insurance Association according to Section 7a, Paragraph 1, Sentence 1, SGB IV. This can be done in writing or electronically. The pension insurance then decides after considering all circumstances in the individual case.
- In the mandatory status determination procedure , the responsible collection agency applies for a determination procedure at the same clearing house in accordance with 7a (1) sentence 2 SGB IV . This is done automatically via a statement sheet. This happens directly when registering for social security if the employee registers spouses or children or a managing partner of a GmbH or UG . The parties will then be informed of the decision in writing.
Since the consequences can be quite expensive if such a procedure is initiated, there is the possibility in advance of having the individual case examined by a lawyer. There are specialized lawyers for this case who support the (bogus) self-employed person both with the preliminary examination and in the event of a lawsuit at the competent social court.