As part of the series “Future Issues in Tax Law,” Prof. Dr. Carsten Meinert of the University of Potsdam analyzed the tax law challenges posed by digital business models in early February. As a professor of civil law, corporate law, and tax law, as well as a judge at the Fiscal Court in Cologne, he highlighted three key problem areas arising from digital business models in his lecture—they concern the intent to generate income, the classification of income, and special forms of compensation.
Where does a hobby end, and where does a profession begin?
A central problem concerns the distinction between a hobby and a commercial activity, particularly in the case of so-called influencers. Until now, it was often assumed that losses retrospectively refute the intent to generate income—an approach that Meinert criticized as questionable. “Deducing intent from subsequent losses is not valid,” he emphasized, calling instead for a forecast to be made in the year of assessment. “The more professionally the activity is carried out, the more likely it is to be considered commercial,” explained Meinert. What matters is the intent at the time the activity begins, not current profitability. This would prevent tax evasion, which often arises from the assumption that influencers are “hobbyists.”
Where is the line between freelance and commercial activity?
The distinction between freelance and commercial activity is complicated by digital business models. The tax authorities distinguish, for example, between “influencers” and “content creators,” with writing activities subject to lower requirements than “teaching” activities. Furthermore, monetization models such as affiliate marketing or advertising contracts are often not classified as income from self-employment, as the revenue flows indirectly through advertising and cannot be directly attributed to the reporting or activity. Furthermore, the use of artificial intelligence (AI) impacts freelancing: According to §18 of the German Income Tax Act (EstG), freelancers must manage their work independently, which becomes questionable with increased AI use. “The more AI, the less freelancing,” explained Prof. Dr. Meinert—a dynamic that requires clear legal boundaries.
Data as Payment – An Unresolved Problem
Special forms of remuneration, such as “data as payment,” also present new challenges for tax law. Data is not considered a traditional economic asset, so §5 (2) EStG does not apply, as the provision applies only to intangible economic assets acquired for consideration. The implementation of the DID Directive in the BGB and the consent requirement under Art. 6 GDPR also complicate taxation. According to Meinert, tax law must find new approaches here, but there is currently little interest in solving the problem, as it would be very complex.
Adaptation Rather Than Reinvention
In conclusion, Professor Carsten Meinert pointed out that the challenges are not entirely new, but rather address the fundamental problem of trade tax and the distinction between self-employment and commercial income. He proposed specific adjustments:
• Forecast-based decision regarding the intent to generate income rather than a retrospective review of losses
• Recognition of digital freelancers such as content creators as a legitimate professional group
• Avoiding reclassifications for income from passive advertising (e.g., affiliate marketing)
• Recognition of (partial) business-related reasons for the receipt of goods or services without payment, including on the expenditure side
“Tax law must adapt, but not reinvent itself,” Meinert concluded. Digitalization requires not only legal clarification but also pragmatic solutions to tax digital business models fairly. With the proposed adjustments, digital business models could be taxed more transparently and fairly in the future.
March 2026