Whether an employee can hold both their main employment and a minijob at two businesses of the same employer was recently examined by the Brandenburg Tax Court.
Facts of the case
In the years in dispute (2016–2018), the plaintiff was employed by employer F. He worked both as a taxi driver subject to social security contributions at employer F's business C and as an internal technical office employee (marginal employment) for employer F's business E. The role as internal technical office employee involved a wide range of administrative tasks, including coordinating work schedules, accounting tasks, etc. There was no fixed workplace or prescribed working hours for this role. Pursuant to § 40a Abs. 2 EStG, the plaintiff's marginal employment as an internal technical office employee was taxed at the flat rate (2%). In the course of a wage tax audit at employer F's businesses, the auditor determined that flat-rate taxation of the wage tax for the plaintiff's marginal employment under § 40a Abs. 2 EStG was not permissible. Instead, a total remuneration was to be formed, which had to be fully included in the income under § 19 EStG. The plaintiff's competent residence tax office subsequently issued amended income tax assessments for the years in dispute. As the plaintiff did not agree with the amended income tax assessments, he filed an appeal with the Brandenburg Tax Court.
Ruling of the Brandenburg Tax Court
In its decision, the Brandenburg Tax Court agreed with the tax authority and accordingly assumed that the plaintiff had a single uniform employment relationship with his employer.
Social security law standards are decisive
Whether a marginal employment exists – and whether flat-rate wage taxation within the meaning of the Income Tax Act may therefore be applied – is determined exclusively by social security law standards. The flat-rate taxation requirements are intended to be aligned with the social security law requirements in order to avoid any discrepancy between social security contributions and the wage tax payable.
In the case in dispute, the plaintiff's monthly remuneration for his marginal employment did not exceed the statutory threshold under § 8 Abs. 1 Nr. 1 SGB IV (EUR 450 at the time). The fundamental requirement of marginal employment within the meaning of social security law was therefore met.
Only with different employers
Under the conditions set out in § 8 Abs. 2 Satz 1 SGB IV, a marginal employment within the meaning of § 8 Abs. 1 Nr. 1 SGB IV may indeed be carried out alongside main employment with different employers.
However, if – as in the case decided – an employee simultaneously holds several positions with the same natural person, then, irrespective of the contractual arrangement or objective criteria distinguishing the activities by type, place and time, a single uniform employment relationship must be assumed for social security law purposes; that is, they are assessed uniformly under social security law. It is therefore not possible to hold a marginal employment exempt from insurance alongside a non-marginal employment subject to compulsory insurance with the same employer.
The Brandenburg Tax Court has, however, allowed an appeal against its decision, so a final ruling is still pending.
Frequently asked questions
Frequently asked questions
Can a main job and a Minijob with the same employer be held simultaneously?
No. If an employee performs multiple jobs for the same natural person as employer, social security law treats them as a single employment relationship. A non-insurable marginal employment alongside a main job subject to social security contributions with the same employer is therefore not possible — even if the activities are clearly distinguishable in type, location and time.
Does it matter that the employer operates two different businesses?
No. What matters is the natural person of the employer, not the individual business. If both jobs are performed for the same natural person – even if that person runs several businesses – the activities must be combined into a single employment relationship.
Is flat-rate wage tax of 2% under Section 40a (2) EStG permissible in this scenario?
No. The 2% flat rate requires that marginal employment exists within the meaning of social security law. Since a single, unified employment relationship with the same employer is not recognized as marginal employment, flat-rate taxation is likewise excluded. The remuneration must be taxed as unified wages under Section 19 EStG.
What criteria determine the tax classification as a Minijob?
Whether marginal employment exists is determined exclusively by social security law criteria (§ 8 SGB IV). This ensures alignment between the social security and wage tax treatment and avoids any divergence between them.
When can a Minijob alongside a main job benefit from preferential tax and social security treatment?
Only if the Minijob is performed for a different employer. Section 8 (2) sentence 1 SGB IV expressly permits a low-paid Minijob alongside main employment subject to social security contributions only with different employers. With the same employer, all jobs are aggregated.
Is the ruling by the FG Brandenburg final?
No, the FG Brandenburg has allowed an appeal. A final decision by the BFH is therefore still pending. Employers should nevertheless handle such arrangements cautiously and carefully review any multiple employment relationships with the same individual.