Facts
[A. GmbH] has been registered in the Commercial Register since 2008 and is affiliated with the Compensation Fund of the Canton of Thurgau as a contribution-liable employer. The shareholders B. (19 shares) and C. (1 share) also work for A. GmbH: [B.] as the managing director and C. as the assistant to the management. In 2011, [A. GmbH] declared a salary of CHF 180,000 for [B.] and a salary of CHF 42,279.60 for C. Additionally, [A. GmbH] paid dividends of CHF 380,000 to [B.] and CHF 20,000 to C. In 2015, the Compensation Fund of the Canton of Thurgau conducted an employer audit and reclassified CHF 122,400 of the dividends paid to [B.] as contributory salary. [A. GmbH] filed a complaint against this, which was dismissed by the Administrative Court of the Canton of Thurgau and ultimately by the Federal Supreme Court.Considerations
The Federal Supreme Court stated that according to case law, social security contributions are only levied on earned income, not on investment income. Whether a remuneration is to be classified as pure investment income is determined by the nature and function of the payment. Under certain circumstances, payments from the net profit of a corporation may also be considered contributory salary, particularly if they are in the nature of bonuses. The lower instance had found that the dividend of CHF 400,000 paid in 2011 corresponded to 29.6% of the taxable company value of [A. GmbH], which was significantly above 10%. This constituted an obvious disproportion between the capital employed and the dividend paid out. Furthermore, B.'s industry-standard salary had been plausibilized based on his income in previous years as a sole proprietorship. Therefore, it was not objectionable that the Compensation Fund had reclassified a portion of the dividends paid to B.…