Facts
The A. GmbH, domiciled in X., has been registered in the Commercial Register of the Canton of Obwalden since June 4, 2008 and is affiliated with the Compensation Fund Obwalden as a contribution-paying employer. Its sole employee B. serves as a shareholder and managing director with sole signatory authority. In the years 2009 to 2012, B. was paid annual salaries of CHF 106,800 (2009), CHF 110,000 (2010 and 2011) and CHF 20,880 (2012, 20% workload). During the same period, the company paid out gross dividends of CHF 100,000 each or - in 2012 - CHF 60,000.
On September 25, 2013, the auditing body of the Compensation Fund conducted an employer audit of the A. GmbH for the period from June 4, 2008 to December 31, 2012. It concluded that B.'s industry-standard salary would amount to CHF 180,000 and - after deducting a capital return of 10% of the tax value - reclassified the remaining amount of the dividends as salary. On this basis, it issued payment orders, by which the company was required to pay a total of CHF 26,595.15 in AHV/IV/EO contributions.
Considerations
According to case law, remuneration that is to be considered pure capital income does not belong to the relevant salary. Whether this applies depends on the nature and function of a benefit. In light of the basic legal decision that only earned income, not asset income, is subject to contributions, an appropriate compensation for the work performed and an appropriate asset return must be taken as a basis.
The company has a considerable margin…