Occupation of the merchant status – burden of proof
In principle, everyone who operates a trade is considered to be an actual businessman. As already described, there are certain exceptions. However, these exceptions are not clearly subject to regulation on the part of the legislature . Therefore, in most cases, the assumption of merchant status applies first and for you, the burden of proof is reversed . This means that you have to prove yourself that you are not an actual businessman.
To judge this, there are various criteria , both qualitative and quantitative.
- Quantitative criteria: the scope of your range of products, the type and size of your storage, the variety of your transactions
- Qualitative criteria: your turnover , your working capital, the number of your business premises or the number of your employees
Based on these criteria, there is then an overall view of whether you are an actual merchant or not. If it is determined that you are an actual businessman, then you are also obliged to enter yourself in the commercial register . For you, however, this also means that you start your activity as an actual salesman when you start your trade. The dutiful entry then only has a declaratory function.
Which boundaries do you have to consider?
If you earn your living by running a trade , then you are a merchant. This is how it is laid down in Section 1 of the German Commercial Code (HGB). However, depending on the type of origin and the nature of the status as a merchant, there are still different types to be distinguished.
|Salesman||As a freelance merchant, you are self-employed who decides to make use of the option of voluntary entry in the commercial register and is therefore subject to double-entry bookkeeping. This also applies to the operator of an agricultural or forestry business.|
|Actual merchant||As a commercial clerk, you are a self-employed person who exceeds the turnover and profit limit and is therefore required to be entered in the commercial register.|
|Mold merchant||Companies that correspond to the legal form of a company .|
|Fictional merchant||You are referred to as a fictitious merchant if you or a group of people are illegally entered in the commercial register.|
|Bogus merchant||The bogus merchant is a person without the merchant status and without an entry in the commercial register. The bogus merchant only gives the impression of being a real merchant.|
Rights and duties as an actual salesman?
As for any other merchant, you as an actual merchant have a number of rights, but also obligations.
- Duty of the company name:
You are obliged to conduct your business with your business under a company name . However, it should be noted that the name does not suggest something that you cannot achieve with your company. Your company name must also be different from other companies .
- Mandatory information on business documents:
Your business documents must contain mandatory information. In addition to the name, this also includes the legal form, the seat of your company, the registry court responsible for you and the number of the entry. If you run your company as a corporation , the documents must also name the leading members of the company.
For you as an actual businessman, you have a strict accounting obligation . You are only exempt from this obligation if you generate less than 60,000 euros in profit and less than 600,000 euros in sales for two financial years in a row. If this is not the case, you are obliged to keep double-entry bookkeeping and to draw up annual financial statements with a balance sheet and inventory .
- Procuration right:
One of the most important rights for you as an actual businessman is the power of procuration . This means that you have the right to issue powers of attorney. For example, if you grant power of attorney to one of your employees, he or she can do important business on your behalf. You can also grant powers of attorney, but these are more limited than power of attorney.
- Difference to the consumer:
Compared to the legislature, however, as an actual merchant, you are less worthy of protection than an inexperienced consumer.
Bookkeeping as an actual clerk
If you are only a businessman as an entrepreneur, you do not necessarily need an entry in the commercial register . The prerequisite for this is that your company is so large that you can no longer see the financial situation in your company with a simple income excess calculation or a voluntary entry in the commercial register. For this reason, as an actual salesman, you are obliged to keep double-entry bookkeeping and draw up a balance sheet .
For tax reasons, you are obliged to do double-entry bookkeeping from an annual turnover of 600,000 euros and / or a profit of 60,000 euros or more. This is described in § 141 AO under the item accounting obligation.
The moment you run a business, you will be classified as an actual businessman . But for the law this is only a guess at first . You yourself are responsible for the burden of proof and have to prove that certain criteria for an actual businessman are not met and, for example, you can only be classified as an optional businessman. As an actual salesman, you have to fulfill certain duties, which include double-entry bookkeeping, the preparation of annual financial statements, balance sheets and inventory .