The Federal Fiscal Court confirms the principle that even if there is an expressly agreed contractual prohibition on personal use with the sole shareholder-managing director of a GmbH, there is a presumption that he also uses a company car made available to him for personal purposes. This presumption is based on general life experience, namely that, in the absence of organizational restrictions or a logbook, such a company car is also used for personal purposes. Result: The Federal Fiscal Court (BFH) adheres to this approach, even though other BFH chambers have, in some cases, ruled differently in their case law.
Practical example:
A limited liability company (GmbH) was unable to convincingly demonstrate—either through a properly maintained logbook or through other evidence—that the company car was used exclusively for business purposes. Consequently, the presumption of personal use could be relied upon as the basis for the tax adjustments made by the tax office, including the addition of a „hidden distribution of profits.“ The company was unable to sufficiently substantiate its position during the appeal and thus failed to meet the legal requirements for a conclusive presentation of its case.
Summary: Systematic and verifiable monitoring of the use of a company car is essential, particularly when there is no clear distinction between business and personal interests, as is the case with a sole shareholder-managing director. Conclusion: A contractual prohibition on personal use alone is not sufficient to rebut the tax presumption of personal use. Rather, this must be substantiated by concrete evidence (e.g., using a logbook).