Trade
trade is in principle each gainful occupation, which is operated in the long term on own calculation, own responsibility and with the intention for realization of profits. Strictly speaking one understands the producing and processing trades by trades: Industry and handicraft.
In the iurisdiction the following has itselfDefinition interspersed: Trade is each permitted, independent activity, which is continued and is not only occasionally implemented, with exception of the primary production, administration of own fortune, scientific, artistic and literary occupations as well as services of higher kind, directed toward realization of profits.
In Germany the practice of a trade is subject to the trade and industrial regulations. Afterwards each commercial activity must be on and logged out at the responsible municipality; colloquially one speaks of trading licence.
On the basis of the occupation liberty fixed in article 12 of the Basic Law in the trade and industrial regulations the freedom of trade was fixed. Afterwards it is located each in the context of further lawsfreely to operate a trade and occupation to select job and training centre freely.
After the trade and industrial regulations (GewO) and the civil law book also the land and forestry apply, as well as free occupations such as physicians, attorneys, tax counsels as industrial concerns, are however in accordance with §6 GewO the range of application extracted. According to definition of the income tax and trade tax law they rank not among it, see below tax law.
One differentiates trades with respect to industry, handicraft, house trade and publishing trade. 1878 were introduced to Germany the supervision of trade, those the observance of work and immission control-legalRegulations supervised and on it constructing industrial concerns with rough offences to also close knows.
In commercial way if a furnished business concern is necessary for the practice of the trade, the manufacturing one is considered as Istkaufmann and must in addition to the regulations of the civil and tax law also the requirements of the commercial code fulfill.
With the right for the practice of a trade also the obligation is connected for the guidance by books, as well as the production of end-of-year procedures. Buyers after the HGB must provide balances.
tax law
legal one (according to tax law) basis is § 15 (2) EStG:
"(2)An independent lasting manipulation, those with the intention is undertaken of obtaining profit and as participation in general economic traffic presents themselves, is industrial concern, if the manipulation neither as practice of land and forestry still as practice of a free occupation still as another independent work to regard is. (...) An industrial concern is present, if its conditions are in all other respects given, also if the realization of profits intention is only one secondary object. “
From it the following factual characteristics result:
- Independence:no covered, dependent occupation, so-called. „Illusory independence “(can be present above all, wherethe manufacturing one exclusively for a client active is, in the Franchising range etc.);
- Lastingness: the activity is not only occasionally exercised;
- Realization of profits intention: the activity must be aligned on the achievement of an appropriate profit, i.e. above all, a profit may be impossible with high probability not from the beginning;
- Participation in general economic traffic: the goods and services must be offered on the market, not only become achievements between private individuals exchanged;
- not land and forestry, free occupation or other independent activity.
Only if all factual characteristics are fulfilled, the manufacturing one has rights andObligations, which the law attaches to the industrial concern characteristic. An example: A Zuhälter furnishes a hairdresser business, which after self-advertisement exclusively „prominent one serves “. The business owner shows up with the examination that no prospect insists on appropriate profit, there neither (hairdresser learned and mastership examination existed)still appropriate outstanding expertise possesses its employees (it employs its prostitutes as temporary workers). The acknowledgment of the industrial concern characteristic is to be malfunctioned to the enterprise, which should serve exclusively for the money laundering from different other trades, due to missing realization of profits intention. Thus abuse is prevented, without bspw. other laws (here: To have to bring money laundering law) to application.
The realization of profits intention can be secondary object. In accordance with the Abfärbetheorie leads also an only slight portion of commercial activity to an income from industrial concern.
An income from industrial concern is a profit income.
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