What are some must-have fitness machines

Gym

Table of Contents

1 Fitness studio services
2 Income tax treatment
2.1 Commercial activity
2.2 Freelance work
3 fitness studios of non-profit sports clubs
4 Treatment under VAT law
4.1 Services for a flat fee
4.2 Sauna baths
4.3 Swimming pools
4.4 Provision of a fitness studio to employees
5 Bibliography
6 Related Lexicon Articles

1. Fitness studio services

The services of a fitness studio include

  • the actual fitness training and / or

  • a sauna operation.

This may still include benefits

  • from the provision of swimming pools and solariums as well

  • from the sale of certain preparations.

2. Income tax treatment

2.1. Commercial activity

According to the BFH judgment of 13.1.1994 (IV R 79/92, BStBl II 1994, 362), the operation of a fitness studio does not constitute a teaching activity if the personal customer care is essentially based on the mere instruction in the use of the equipment and the monitoring of the training is limited in individual cases (H 15.6 [definition of self-employed work / business enterprise; b) examples for business enterprise] EStH). If the focus is on making the devices available, it is a commercial activity (Section 15 (2) EStG). The FG Nürnberg is of the opinion (rkr. Judgment of 9.5.1989, II 167/83, EFG 1989, 543) that in general the customer of a fitness studio is more interested in the constant use of the equipment and other facilities than in a more or more less intensive information from the operator, and that such a company should therefore generally be regarded as a commercial enterprise. In continuation of the judgment of 13.1.1994 (IV R 79/92, BStBl II 1994, 362), the BFH ruled with judgment of 18.4.1996 (IV R 35/95, BStBl II 1996, 573) that a bodybuilding studio should be a commercial enterprise if the teaching activity only characterizes the initial phase of the courses offered and the training machines are also freely available to the customers (→ teaching activity and tuition remuneration).

2.2. Freelance work

The question of whether the operation of a fitness studio is to be viewed as a freelance or commercial cannot be answered uniformly for all companies in question. Cases are thus conceivable in which the personal accompaniment of the training by the studio owner takes on a scope that makes the machines appear only as a means of giving physical education. This can be the case if the studio owner designs an individual training program for each course participant, discusses this with the participant, explains the muscles and muscle groups to be trained, gives instructions on correct posture during the exercises, monitors and carries out the training throughout the contract period accompanies critical statements and suggestions and, if necessary, changes exercises (BFH judgment of 13.1.1994, IV R 79/92, BStBl II 1994, 362). For the acceptance of a freelance activity it is necessary that the course participant - apart from individual exercise phases - is not left to himself, but that the teaching activity remains formative until the end by the fact that the learner continues to be guided by the instructor. The personal relationship between instructor and instructor necessary for these instructions must therefore exist for the entire duration of the contract. It is also not sufficient that these features are only fulfilled for individual customers, while the other customers are given the exercise equipment after an initial phase without any further instructions for free use (BFH judgment of April 18, 1996, IV R 35/95, BStBl II 1996, 573).

Instruction is the transfer of knowledge, abilities, skills, behavior and attitudes by teachers to students in an organized and institutionalized form. For tax purposes, every type of teaching activity is counted among the liberal professions, in particular teaching sports and gymnastics. However, if the activity is not limited to imparting skills, but if other services are also offered in connection with the teaching activity, then depending on the type and scope of these other services, there may be a commercial activity overall.

The BMF letter dated October 22, 2004 (BStBl I 2004, 1030) deals with the classification of income from work in the context of a healing or medical care profession as income from freelance work or as income from commercial operations. The BMF points out that physiotherapists offer fitness equipment in their practices for use as part of the so-called »medical equipment training« (MGT). MGT is usually a purely preventive measure following a medically prescribed measure. A doctor's prescription is usually not available for MGT. In this respect, the physiotherapists compete with the operators of commercial fitness studios. As far as physiotherapists offer MGT, it is no longer a medical occupation within the meaning of Section 18 (1) No. 1 EStG. Rather, the physiotherapists earn commercial income from the MGT. This also applies if - as an exception - a medical prescription should be available for an MGT. S.a. OFD Frankfurt of 2.4.2015 (S 2245 A - 11 - St 210, DStR 2015, 1175 on the income tax treatment of the MGT (see also → income from business and → income from self-employed work).

3. Fitness studios of non-profit sports clubs

Sports clubs can run a → special-purpose facility with the operation of a fitness studio (Bayerisches LfSt from May 9, 2008, S – 0186a.2.1-1, LEXinform 5231446). If the users of the rooms and equipment are supervised by an instructor during training, the economic business operation is to be regarded as a sporting event within the meaning of Section 67a AO. If only rooms and sports equipment are left without qualified supervision by the club, according to the regulation in the AEAO to § 67a No. 12 there is a special purpose operation within the meaning of § 65 AO if tenants are members of the sports club (see OFD Frankfurt from May 21, 2008, p 0186 a A - 11 - St 53). U.E. the competition test of § 65 No. 3 AO takes a back seat when renting to club members, since the rental of sports facilities to club members is unavoidable to fulfill the tax-privileged purposes. In these cases, it is a special purpose operation in terms of tax and sales tax law within the meaning of Section 65 No. 3 AO. The competition clause does not apply to services that relate to the core area of ​​the non-profit association's tax-privileged activities. Otherwise, the functional status of § 65 AO would largely be void (see Rz. 24 of the BFH judgment of 2.3.2011, XI R 21/09, BFH / NV 2011, 1456; see AEAO to § 67a No. 13 under "Swimming for everyone" and Mrosek, UR 12/2018, 469).

4. Treatment under VAT law

4.1. Services for a flat fee

The administrative body of the OFD Saarbrücken of January 20th, 1989 (S 7253 - 1 - St 241, UR 1989, 226) comments on the taxation of the various services provided by fitness studios (swimming pool, food, massage, solarium, sauna baths).

The operator of a sports and leisure center who uses its facilities and services against so-called club members monthly flat fee - regardless of the actual use - provides (membership fee), does not administer any therapeutic baths and does not generate any sales directly related to the operation of a swimming pool, if other than a swimming pool and a sauna are not covered by Section 12 (2) No. 9 UStG includes facilities (fitness and gymnastics rooms). This independent service does not fall under any preferential treatment regulation (BFH judgment of 8.9.1994, V R 88/92, BStBl II 1994, 959). The reduced tax rate according to § 12 para. 2 No. 9 sentence 1 UStG cannot be applied because a fitness studio does not regularly generate any sales directly related to the operation of swimming pools and no sales from the administration of spas. The business purpose of the studio operator is not a bundle of services consisting of beneficiary and non-beneficiary services, but only a special type of service that does not fall under the above-mentioned beneficiary regulation (Section 12.11, Paragraph 1, Clause 5 UStAE in the version of the BMF letter of April 12, 2017, Federal Tax Gazette I 2017 , 710; see → swimming pools and spas).

Sales tax law is one uniform, non-divisible service to be assumed if their individual factors are so intertwined that they take a back seat to the whole when viewed naturally. On the other hand, a service relationship based on an overall contract can be broken down under VAT law if several individual services that are independent and independent of one another are summarized here according to their economic content. A uniform, non-divisible service cannot be affirmed simply on the basis of the fact that it is based on a uniform contract and is provided for a uniform fee. Rather, what is decisive is the economic content of the services provided. The economic content of the services of the studio operator to the members consists regularly in the provision of the facilities and services for use during the opening hours of the »Club«. An additional usage fee for the use of only very special services is not payable (see also BMF of April 12, 2017, BStBl I 2017, 710).

4.2. Sauna baths

From July 1st, 2015, sauna baths are no longer favored according to § 12 Paragraph 2 No. 9 UStG. This also applies if the sauna is also available to non-members or if the fee for use is not already covered by the membership fee.

For sales made after June 30, 2015, the question of whether the administration of a therapeutic bath is favored according to Section 12 (2) No. 9 UStG, the guideline of the Federal Joint Committee on the prescription of therapeutic products in contract medical care (Therapeutic Products Directive / HeilM-RL in the currently valid version) in connection with the so-called therapeutic product catalog (see also Section 12.11, Paragraph 3 UStAE). It is crucial that the administration of the spa can be prescribed as a medicinal product according to these regulations, regardless of whether a doctor's prescription is actually available. In accordance with Section 5 of the Therapeutic Products Directive, the following measures listed in the annex to the directive, such as sauna baths (Section 12.11, Paragraph 3, Clause 6, No. 2), are not prescribable and therefore not therapeutic baths within the meaning of Section 12 (2) No. 9 UStG Letter c UStAE). For the sales tax treatment of sauna services, see also the ordinance of the OFD Lower Saxony of 8 May 2017 (S 7243 - 12 - St 184, UR 18/2017, 726).

4.3. Swimming pools

The tax reduction according to § 12 Abs. 2 Nr. 9 UStG is ruled out if the letting of the swimming pool with other, non-privileged facilities takes place as part of an independent service of a special kind (see BMF letter of April 12, 2017, BStBl I 2017, 710 and BFH judgment of 8.9.1994, VR 88/92, BStBl II 1994, 959; Section 12.11, Paragraph 1, Clause 5 UStAE).

If the club also maintains a swimming pool, the reduced tax rate in accordance with Section 12 (2) No. 9 UStG can only be considered if a special fee is to be paid for its use. This is particularly the case if the swimming pool is also available to non-members or if the fee for use is not already covered by the membership fee.

According to Section 12.11, Paragraph 1, Sentences 2 to 4 of the UStAE, a swimming pool within the meaning of Section 12, Paragraph 2, No. 9 of the UStG must be designed and suitable for providing an opportunity to swim. This assumes that the water depth and the size of the pool in particular enable swimming or other sporting activities (see BFH judgment of August 28, 2014, V R 24/13, BStBl II 2015, 194). The sporting activity does not have to be carried out at a certain level or in a certain way, for example regularly or organized or with a view to participating in sporting competitions. For further explanations see → Swimming pools and spas.

4.4. Transfer of a fitness studio to employees

The FG Münster ruled on October 1, 2015 (5 K 1994/13 U, LEXinform 5018478) that the free use of a fitness studio and other sports activities through ArbN triggers sales tax (→ benefits in kind).

The plaintiff - a GmbH - maintained a fitness studio that their ArbN could use free of charge outside of office hours. In addition, she offered the ArbN various courses (e.g. spinning, aerobics, step aerobics, Pilates, back training and Nordic walking) also free of charge.

The FA saw this as a non-cash benefit subject to sales tax and set the value in the amount of € 33.60 (gross) per month and person. The plaintiff, on the other hand, was of the opinion that the provision of sports facilities was not subject to VAT because it was a matter of services to improve the general health of their ArbN.

The FG partially upheld the complaint. The provision of the sports facilities to the ArbN does not initially represent a paid service in the form of an exchange-like turnover. In the event of a dispute, it cannot be assumed that the ArbN have used part of their work in return for the use of the sports facilities. This follows from the fact that both the scope of the work to be performed and the amount of the cash wages paid are independent of the use made of the benefits in kind.

However, there is a free value transfer to the ArbN for their private needs. The plaintiff did not provide the ArbN with the fitness studio and the course offerings primarily out of operational interest. In the case of health-promoting training programs, this is only the case in exceptional cases if this is intended to prevent or counteract a specific work-related impairment to health. In contrast, general health-promoting measures are primarily in the personal interest of the ArbN. In the event of a dispute, the ArbN's personal interest results from the fact that participation in the sports program was voluntary and took place outside of working hours.

After all, the permanent provision of a fitness studio with offers is not just a matter of courtesy. However, the wage tax value of the remuneration in kind is not considered as the assessment basis, but only the expenses incurred by the plaintiff for the maintenance of the sports facilities. Since this value was lower, the lawsuit was successful in this respect (communication FG Münster dated November 16, 2015, LEXinform 0443798).

Since the ArbG (GmbH) used the input services for the operation of the fitness facility both for sales to other companies in the context of their economic activity and for non-company (private) purposes of their own ArbN, the ArbG was entitled to use the input services in the To assign the connection with the operation of the fitness facility to its economic activity and to make the input tax deduction (e.g. from the acquisition of the training equipment and the rent paid for the premises). In accordance with this assignment, he has to subject the free gifts to his employees within the meaning of Section 3 (9a) sentence 1 no. 2 UStG to taxation. According to the case law, an entrepreneur is only entitled to no input tax deduction in the event that he intends to use a service purchased from him exclusively for non-company purposes within the meaning of Art. 26 VAT Directive, § 3 Paragraph 9a UStG (see BFH dated December 9, 2010, VR 17/10, BStBl II 2012, 53, margin no. 10) with the result that he then does not have to tax any free value levy, since in this case he did not receive the input services for his company and one Corrective input tax through value taxation is not required.

5. Bibliography

Mrosek, special purpose business property and reduced sales tax rate in the examination practice using the example of fitness studios of non-profit sports clubs, UR 12/2018, 469.

6. Related Lexicon Articles

→ Teaching and teaching remuneration

→ Tax-free income according to the Income Tax Act, ABC form

→ Income from business operations

→ Benefits in kind

→ Income from self-employed work

→ Swimming pools and spas

 

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