Remuneration of Board of Directors members as relevant salary

Facts

S., born in 1940, had been the Chairman of the Board of Directors of company P. AG since 1997. From 2001 to 2003, he received a net fee of CHF 10,000 per year for this activity as well as an expense allowance of CHF 5,000. As of January 2004, P. AG concluded a service contract with Büro Dr. S. AG, in which S. was active as the sole member of the Board of Directors and sole shareholder. According to this contract, P. AG transferred various tasks, including the management of the Board of Directors, to Büro Dr. S. AG and remunerated these services with a net amount of CHF 15,000 per year. The competent compensation fund demanded from P. AG compensation insurance (AHV/IV/EO/ALV) contributions, FAK contributions, and default interest totaling CHF 12,199.15 for the years 2001 to 2004, as it classified the Board of Directors' fees paid to S. as well as the remuneration paid to Büro Dr. S. AG in 2004 as relevant salary.

Considerations

The Federal Supreme Court states that Board of Directors' fees only constitute relevant salary within the meaning of Art. 5 para. 2 OASIA and Art. 7 lit. h OASIO if they are paid directly to the member of the Board of Directors personally. However, if the member of the Board of Directors exercises his or her activity as an employee of a third party and the compensation for the Board of Directors' activity is paid to this third party, it is not the relevant salary of the member of the Board of Directors, but rather potentially income from self-employment of this third party (if it is a natural…