Pension insurance and bogus self-employment at a glance: from client to boss?

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Pension insurance has its pitfalls: Even if you are self-employed for the tax office, you may be classified as an employee by social security: For example, if you are prescribed by the client as a contractor - and a few other factors. That has consequences! Pension insurance and bogus self-employment at a glance: from client to boss? Pension insurance and bogus self-employment at a glance: from client to boss?

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Simone Janson Simone JansonSimone Janson is publisher, German Top20 blogger and Consultant for HR communication.


Important NOTE

This entry contains content and information that may be out of date, eg due to legal or statistical changes. Because it can still be helpful to get an overview of the topic, you can still find it here.

Voluntary or compulsory?


Actually, you might not care about the statutory pension insurance. Because, to their delight, many self-employed people are not one thing: a member there. However, some professional groups are required to become members. And a second look is also worthwhile.

The German Pension Insurance Federation (DRV) is responsible for most professional groups. As a self-employed person, you are not automatically insured, but have to register yourself with the DRV if you want or need to take out pension insurance. The DRV maintains around 1.000 information and advice centers nationwide (under the menu item "Advice" can be found), to whom you can contact for detailed information.

Private old-age provision may be worth more than voluntary pension insurance. In statutory pension insurance, you have to pay all the contributions yourself, except for artist social insurance, which is currently 19,9 percent of your income or what you specify as the assessment value.

Benefits of compulsory insurance


But: Only if you are compulsorily insured in the statutory pension insurance (whether on application, through the KSK or by law it does not matter), you are entitled to Riester funding with a private pension scheme. The Rürup pension with tax benefits, however, is open to everyone.

At least one advantage: most of the self-employed can happily decide whether they want to take out voluntary insurance or take out compulsory insurance on application.

The evil awakening: borderline cases of social security


But imagine that you work as a freelancer. You have properly registered with the tax office and you take care of your social security yourself. But then comes the bad awakening: The German pension insurance comes to you with a status assessment procedure - and in the end it comes out: you are not at all self-employed. At least not for social security, which doesn't care what the tax office says about it.

Even those who actually do an internship, but actually do a normal full job in it, legally do not do an internship at all. Because the internship must focus on the educational character. At least that's how the job advisor Kiel judged on November 19th. Even if the decision is not final, such judgments can have far-reaching consequences: It is therefore not a question of what contract was concluded, but of what the actual work looks like. In plain language means: Even if the intern only has an internship contract with low remuneration - if he is not trained, he works fully, then he is completely independent of the name in the contract and must also be remunerated and insured as such.

Help, I am not at all independent!


Result: Your previous client becomes your employer and must suddenly insure you as a normal employee. This means that he must register them with health insurance, long-term care insurance, pension insurance and unemployment insurance, and from that point onwards deduct half of the contributions due from your fee and the other half as an employer's contribution.

After all, your new boss must also insure them against occupational accidents in the employer's liability insurance association - the employer pays the contributions entirely on his own. And that, that's the nasty thing, is that the gross wage is your basis for calculating the insurance premiums - and not the profit.

That could not bother you any further - but you're probably going to get rid of the client. For you have become incredibly expensive now.

What if you are suddenly self-employed?


If your contract is classified as a fictitious, there are three options:

  1. Your client changes the contract so that you are clearly self-employed.
  2. You become a member of the social security system and from then on you are compulsorily insured under the statutory health, pension, long-term care and unemployment insurance. The client has to report them there and you both pay half of the insurance premiums. However, you can remain independent in terms of tax and employment law (as long as the tax office does not mind).
  3. It also offers a normal working relationship. For example, you can then arrange part-time work and, at the same time, engage in other self-employment activities. And you can complain about permanent employment.

When are you self-employed?


To make sure that you do not even get to the point, you should be familiar with the rules for self-esteem: It depends on where and when you are doing your work and above all whether or not you are firmly involved in the work organization of your client.

If you are strongly instructed, eg your place of employment and the working time are prescribed, this is already an indication. Another is that you are strongly involved in the work organization of your client.

Compulsory insurance for certain professions and groups


Some self-employed people have no choice: they must pay into the state pension insurance as soon as they earn more than 400 euros a month or 4.800 euros a year if they do not do the job in question (what else they do is irrelevant!) employ employees subject to compulsory insurance and her Company is not a corporation.

However, this earnings limit of 4.800 euros per year is the profit in terms of income tax law. So you can first deduct your operating expenses from your sales. The insurance premiums are then calculated in exactly the same way as for compulsory insurance on application.

Who has to pay?


This regulation affects, among other things, the self-employed in teaching, medical and nursing professions (this also includes child minders and aerobics trainers), home traders or anyone who practices a craft that requires a license.

Also affected are self-employed persons who receive more than 5/6 of their fees from one and the same client due to a standing order relationship or regularly recurring order relationships.

It is the job that counts, not the name


When it comes to whether or not your job is subject to pension insurance, what matters is what your job looks like, not what it is called. If, for example, your work is more advisory and less educational or healing, you can call yourself a consultant and are then exempt from the pension insurance obligation.

If you are unsure whether you belong to one of these groups, you should inquire with the DRV. If you belong to this group, you must report to the DRV yourself within the first three months after taking up compulsory insurance.



According to the Stiftung Warentest, independent teachers were able to be exempted from the pension insurance obligation until September 30, 2001. This regulated paragraph 231 paragraph 6 of the VI. Social Code.

The prerequisite was that they made private provisions. However, those who had not made private provision or became self-employed afterwards had no choice and had to join the statutory pension insurance scheme.

Calculation of contributions


As with compulsory insurance, the contribution rate is calculated on request. Young professionals can be exempted from compulsory insurance for the first three years.

Anyone who does not report must expect retroactive payments of up to four years. If the DRV suspects that you have deliberately not taken out insurance, even up to 30 years. But also the postpayment obligations due to late reporting of a fee activity expire after four years.

Who thinks he won't get caught: The DRV makes regular company audits, especially for those clients who employ a large number of honorary staff in the relevant professional group.

Honorary teachers are not allowed in the KSK


By the way, the honorary teachers have a particularly difficult time: this depends on the one hand on low earnings, but on the other hand also on the unjust social security, which has now been confirmed again by the Federal Constitutional Court

While many other solo self-employed persons are allowed to be part of the social insurance scheme and normally self-employed persons have at least several clients, they are equally doubly poor. They have to be insured with a 4800 annuity annually,

Usually only a few clients, very often only one (the respective education institute), if courses fail times, then there is no failure hornonorar. And yet you have to pay the pension insurance.

Constitutional complaint rejected


On the other hand, a non-professional honorary lecturer had now submitted a constitutional complaint. The corresponding verdict was issued at the end of June and was published on the 13.07 by the Press Office of the Federal Constitutional Court (BverfG).

Accordingly, the First Senate of the Court had unanimously decided not to accept the constitutional complaint. Justification

The Chamber considered compulsory insurance a legitimate purpose of the corresponding provision in § 2 of the Sixth Social Code. This protects the victims and counteract the need for financial help in old age, summarizes the press release of the court. This "only a self-evident provision for the age is required". The court was unable to see any difference in treatment with other self-employed persons in the law: it considered that the special need for protection of teachers from other self-employed workers was a sufficient differentiation criterion. Legislators rightly assume that there is a special need for protection of self-employed teachers. It is based on the argument that "self-employed teachers who do not employ workers are vulnerable because, like employed persons, they depend on their own labor to secure their livelihood," states the ruling. - According to this logic, however, the legislature would require all solo self-employed (and therefore the majority of all self-employed) to be subject to compulsory pension insurance.

Measured with two dimensions?


Personally, I also think that was measured with two different measures - after all, the "journalists and media lobby" (I call this now so striking) recently also a success in copyright for themselves.

My conclusion: Honorarlehrern is simply missing the lobby. There are only a handful of alternatives:

  1. accept
  2. work only part-time and do not exceed the limit of 4800 Euro per year
  3. Seeking permanent employment
  4. completely change the job
  5. emigrate

Which Schweinderl would like to have?

Voluntary pension insurance


As a self-employed person, you can voluntarily take out statutory pension insurance. You do not have to consider any pre-insurance times, no entry or termination dates, but can start and end the voluntary pension insurance at any time. How much you actually earn is irrelevant for the voluntary pension insurance. You can freely specify the income according to which your contributions are calculated.

However, your assessment value must be at least EUR 400 and may not exceed the contribution ceiling of EUR 5.500. With a contribution rate of 19,9 percent, the minimum contribution is 79,60 euros (19,9 percent of 400 euros) and the maximum contribution is 1.094,50 euros.

In contrast to compulsory insurance, the assessment value and contributions are identical in East and West Germany. And of course the following applies: the higher your assessment value or contribution, the higher your pension later.

Compulsory insurance on request


You can also apply to the DRV for compulsory insurance. The advantage: You can then apply for a Riester pension. However, a monthly income in the amount of the reference amount is used to calculate the contributions - this is currently € 2.555 (in the west) and € 2.240 (in the east). With a contribution rate of 19,6 percent, you then have to pay a monthly contribution of 508,45 (West) or 445,76 Euro (East) in full, since there is no employer share.

Young professionals only have to pay half of it in the first three years of self-employment. If you earn less and can prove it, a correspondingly reduced monthly fee is possible. To prove the actual income, the DRV requests the last tax assessment and then adds the average income increases that have occurred since then. However, if your income has dropped by more than 30 percent since the last tax assessment and you can prove this with documents such as bank statements or proof of order, your assessment value can also be set lower.

If you are unable to submit a tax assessment or “suitable documents (for example, because you have just started your own business), you must carefully estimate the expected income. According to this estimate, the pension contributions are calculated until the first tax assessment is available. After that, all future contributions will be calculated according to the respective tax assessment. You can only apply for compulsory insurance in the first five years of self-employment and you can only terminate compulsory insurance if you give up your self-employment.

Status determination procedures


If you are deemed to be self-employed for an employment relationship, it is unimportant how many clients you have - as soon as the criteria are met, you are self-employed for this contract.

If you are unsure: One possibility may be a "status determination procedure" at Deutsche Rentenverisung. Their decision is binding, and if you are a self-employed person, you will be insured from the date of discovery. However, experts advise against it, because with application also nearly always a classification as fake self-employed takes place.

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