Who doesn’t know it: you clear out your apartment or basement and find that you can no longer use many things. For convenience and nowadays good sales opportunities, the "old treasures" on Internet portals such as Ebay, Facebook or Kleiderkreisel set for sale. The hobby quickly becomes a problem: Enter your e-mail address, set a password, fill in the security fields, answer a few questions about yourself and you’re ready to sell! Also frequently found are small stores that offer homemade items such as jewelry or sewn clothing, for example, in order to earn a little extra income. But be careful: In the case of private sales on the Internet, private individuals could quickly be classified as traders! When this is the case and what consequences this entails is explained in this article.
What is considered a private sale?
For the determination of when a person is still considered to be a private seller, or. When a commercial activity is assumed, there is no uniform, fixed indicator such as the amount of money generated. However, courts have developed standards over time that can be used to classify private sellers/commercial sellers.
In particular, the following criteria are relevant:
1. Number and regularity of sales
First, the number and regularity of the completed sales are decisive. For example, the Berlin Regional Court ruled in 2006 that a mother who sold 80 items of clothing belonging to her four children on eay within one month is to be classified as an entrepreneur (ruling of 5.9.2006, Az. 103 O 75/06). Similarly strict opinion represents the regional court Hanau, which assumed already with 25 sales in the period of 2 months Gewerblichkeit (judgement of 28.9.2006 – 5 O 51/06).
2. Offering similar articles
In the opinion of German courts, the offering of several similar articles also indicates that the sale is not a private sale, but a commercial sale.
3. Appearance to the outside
Also the Internet appearance can give information about the commercial activity. If this is professionally presented, advertising is placed or the store in Ebay with the designation "Powerseller" provided, this speaks strongly for a commercial activity.
4. Overall view
The decisive factor is an overall view, "the overall impression counts". The more of the above criteria are met, the more likely it is that private trading must be rejected.
What am I allowed to sell without a trade license?
Without a trade license, you can sell things that fall under the private sale, which, as explained above, are not commercial sales. If for example only old clothes, the used Playstation or old CD collections are sold, no trade license must be requested.
How much can I earn without a trade?
For this question the trade law on the one hand and the tax law on the other hand must be considered.
In the trade law there is no certain limit at incomes, starting from which a trade must be announced. Provided that one would like to become commercial, a trade must be announced compellingly, all the same whether 100 or 100.000 euros are generated.
From a tax perspective, such limits do exist:
Trade tax only has to be paid from a profit of 24.500 Euro (as of 2021) are paid.
Sales tax does not have to be paid until the annual turnover is 22.000 Euro exceeds (as of 2021). If the current year’s turnover is less than 50 % and the next year’s turnover is less than 50 %.000 Euro, can be excluded from the so-called. small business regulation is being made use of.
From when are private sales taxable?
Basically private sales are completely tax free. However, if the amount of 600 euros is exceeded in the tax assessment period (exemption limit), the entire amount, not just the amount that exceeds the 600 euros, must be declared in the income tax return under "Other" and taxed.
What are the consequences of selling commercially??
For commercial sellers there are a lot of special regulations and obligations. First of all, a business must be registered. If the above profit or. If sales limits are reached, corresponding tax burdens are imposed on the seller. If you sell your goods or services on portals like Ebay or Ebay Classifieds, their T&Cs require you to change your status from "private seller" to "commercial seller". If Ebay classifies you as a commercial seller, but your profile shows you as a private seller, Ebay is even entitled to shut down your account. In addition, warranty exclusions (often encountered is especially "private sale, therefore no return. Sale takes place under exclusion of the warranty right") as a commercial buyer is no longer possible, § 475 para. 1 BGB.
Conclusion
Contrary to what one might initially suspect, supposed private sellers can quickly be classified as commercial sellers. Therefore, sellers should always pay attention to whether they have made use of the. exceed the threshold of commerciality, especially to avoid tax problems.
About the author: Jacob’s life is the law. He has already passed his first state exam in July 2020 with honors. In addition to various internships, including at the Regional Court of Frankfurt am Main, he regularly reports at JuraRat on topics in various areas of law.