In 2016, the Berlin-Brandenburg State Social Court ruled in favour of the recipients of parental benefit (File reference: L 17 EG 10/15). If Christmas and/or holiday money is paid in the form of a 13th and/or 14th monthly salary according to the employment contract, these payments - even if they are taxed at source as so-called other remuneration - must be taken into account to increase the parent's allowance (wir berichteten).
In the meantime, the Federal Social Court ruled that the one-off payments do not increase the parental allowance.
In the opinion of the court, the parental allowance for employees is based on the average of the current, normally monthly, wage in the assessment period. Usually, the current wages in the twelve calendar months prior to the child's month of birth are the basis for the calculation. Not included in this current earned income are holiday or Christmas money, which are granted only once in each assessment period. They belonged to the income that was irrelevant for the assessment of the parental allowance and was treated for wage tax purposes as other remuneration.
An allocation to the current wage did not follow from the fact that holiday and Christmas money were to be calculated as parts of the total annual wage. Nor does the fact that they are paid at the same level as regular monthly wages justify any repeated or current payments. The payment takes place rather related to the occasion once before the vacation time and once before Christmas.
Although this view confirms the clear wording of the law, unfortunately, in my opinion there is still a clear unequal treatment of self-employed persons. If these are based on the taxable profit of the relevant assessment period, it is of no interest under parent benefit law what the composition of the relevant sales revenues is. There is no correction of the profit on the basis of proceeds from auxiliary or ancillary business and furthermore no correction of private shares on which the entrepreneur can exert more influence than on the proceeds of the main business.
After this severe setback, it remains to be seen how the Federal Social Court will react in the other proceedings (wir berichteten) with regard to other remuneration. The chance therefore still exists that salary components that are paid at least quarterly (mainly commissions) can increase the entitlement to parental allowance.
The parents concerned should therefore examine an objection with an application for a stay of proceedings.
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