Germany: BFH decides that foreign models were not subject to German wage tax

The taxpayer produced commercials. They regularly hired non-German resident models who stayed for a short period ? one to three days – in Germany for the production of the commercial. Often the models would only once be active for the taxpayer. The taxpayer did not withhold wage tax on the payments to the models. However, the German tax authorities held that wage tax should have been withheld.
Both the Court of First Instance and the German Supreme Court (Bundesfinanzhof, hereinafter BFH) decided in favour of the taxpayer. The BFH held that non-resident models, who stayed in Germany for a short period to act in the production of commercials, can be independently active and hence no withholding of wage tax is required. It appears that the BFH held that decisive was the very short period during which the models were active with the business of the taxpayer. During such short periods an employment relationship is according to the BFH not easily to be assumed.