Can I also claim the higher travel allowance during the probationary period?
In a recent decision, the Federal Fiscal Court clarified that employees, even during a probationary period or with fixed-term employment contracts, cannot claim actual travel costs between home and work as tax-deductible expenses.
Journeys between home and the primary workplace (until 2013: regular workplace) can only be deducted using the travel allowance of 30 cents per kilometre (38 cents from the 21st kilometre) as work-related expenses. This is because the workplace is permanently assigned, allowing employees to adapt to regular commutes, e.g., by forming car pools, using public transport, or living close to work.
But isn't a fixed-term employment or probationary period with the possibility of termination at any time more comparable to off-site work than to a permanent workplace? Can the journeys be deducted using the business travel allowance (30 cents per kilometre) and meal allowances?
Currently, the Federal Fiscal Court has ruled that even with a fixed-term employment contract and during the probationary period, permanent work at a company facility is not considered off-site work. Consequently, journeys to the workplace can only be deducted using the travel allowance, and meal allowances cannot be claimed. The permanence of the assignment to the workplace applies regardless of whether the employment is fixed-term and a probationary period is agreed (BFH ruling of 7.5.2015, VI R 54/14).
In these cases, the employee is working at the company's location – a permanent company facility – and thus at a regular workplace. This is because the employee visits this facility not just occasionally, but with a certain regularity, i.e., continuously and repeatedly. The fact that the work is only carried out for two years and the first six months of employment are subject to a probationary period does not affect the permanence of the assignment to the employer's location.
Note: The ruling refers to the legal situation before 2014 but also applies under the new legal situation from 2014. The law now clearly states: "A permanent assignment is particularly assumed if the employee is to work at such a workplace indefinitely, for the duration of the employment relationship, or for more than 48 months" (§ 9 para. 4 sentence 3 EStG).
The Federal Fiscal Court (BFH) recently ruled on fixed-term employment contracts, stating that a "primary workplace" exists if the employee is to work at a single fixed company facility for the duration of the fixed-term employment and is assigned there. Consequently, journeys to the workplace can only be deducted using the travel allowance, and meal allowances cannot be claimed (BFH ruling of 10.4.2019, VI R 6/17). This is because, under the new legal situation since 2014, the law clearly states (§ 9 para. 4 sentence 3 EStG): "A permanent assignment is particularly assumed if the employee
- indefinitely,
- for the duration of the employment relationship, or
- for more than 48 months at such a workplace".
As a result, many employees with fixed-term contracts often do not benefit from travel expense rates. Since a customer's company facility can also establish a primary workplace, temporary agency workers are equally affected by the BFH's decision. However, the current ruling also has positive aspects. For example:
- If an employee is initially assigned to a primary workplace during a fixed-term employment and later to another workplace, at least the latter is no longer a "primary workplace".
- Case: A temporary agency worker was employed by an agency from May 2012. His employment was extended several times, most recently until 1 May 2015. Initially, the employee worked at a company's site in Y. On written instructions from the agency, he was then employed for the company in X during the term of his employment contract.
- According to the BFH, the employee was assigned to two different workplaces during his single employment relationship. Consequently, he could not be assigned to the second workplace in X for the "entire duration of the employment relationship". He was also not "indefinitely" employed nor for a "period of more than 48 months". In the absence of a primary workplace, the employee was allowed to claim travel from his home to the company's site in X according to travel expense principles at 30 cents per kilometre travelled.
NOTE: If a fixed-term employment relationship, including a temporary employment relationship, is extended in writing before the end of the fixed term by merely postponing the end date with otherwise unchanged contract content, a single fixed-term employment relationship exists. For the question of whether an assignment is for the duration of the employment relationship, the single employment relationship must be considered, not just the extension period. Admittedly, the BFH ruling and its implications are not easy to understand.
