Broadly speaking, we can say that a business self-employed person is a person registered in the Special Regime for Self-Employed Persons (RETA) and who, instead of as a natural person, carries out a self-employed activity on a commercial basis, i.e. with a business structure behind it, for the it works and over which it has control. In the case of directors or administrators of corporations, they are required to maintain effective control of the company by disposing of more than 50% of the shares and performing the functions of directorship and management that entail the exercise of the position of director or administrator fulfill includes.
Regarding active retirement planning for the self-employed, to tell us how it works, we spoke to Angel Berrocal, editor of the work area of Lefebvrelegal publisher responsible for the work entitled Remembering the self-employed , where all the problems of self-employed are collected. According to this expert, the possibility was first considered in 2013 that the self-employed could enter active retirement by making receiving 50% of the old-age pension compatible with continued employment as an employee, or self-employed in line with new strategies to encourage active retirement aging A later reform in 2018 expanded the possibility of accessing the collection of 100% of the old-age pension, provided the self-employed person proves that he has employed at least one employee. As understood by Social Security, the measure applied exclusively to self-employed individuals or natural persons, omitting self-employed companies to understand that in these cases it is the company that hires and pays them.
Successive judgments against this criterion have been made in favor of those self-employed companies who, believing that they would have the same rights as individuals, went to court to assert the compatibility of self-employment with drawing 100% of the pension.
In this sense, recent court rulings have ruled against the criteria of the National Institute for Social Security and opened the door to the possibility for self-employed companies to receive 100% of the old-age pension while continuing in business. . “In this way, their incomes are not only not reduced, but increased,” says Ángel Berrocal.
The first sentence that ruled in this direction corresponds to the Supreme Court of Galicia of May 28, which recognizes the right to reconcile 100% of the plaintiff’s pension with his activity as an independent company. This caused some excitement and comments from some legal organizations. You can find a comment on this below Blog of the Pereira Menaut office where the possible implications of this phrase are analyzed.
However, Ángel Berrocal recalls that establishing jurisprudence requires the intervention of the Supreme Court, which is now responsible for unifying doctrine.
However, in order not to create false expectations among the self-employed in the face of the new jurisprudence, Ángel Berrocal gives a number of nuances to be aware of in order not to be misled:
-Prior recognition of 100% of old-age pension. In order to be eligible for active retirement, this self-employed person must first have been granted the right to 100% retirement after having contributed to National Insurance for each statutory year. However, you can view all the terms and conditions in the General social security law, inside Article 214, refers to old-age pension and active aging where the requirements are raised.
-Regarding the activity to be performed. The amount of the working age pension is equal to 50% of the pension if the pensioner’s occupation is employed. Only if the activity is carried out on their own account and it is proven that they have hired at least one employee, does the level of pension compatible with the activity reach 100%.
-About the request of the person in charge. We have already spoken about the requirement to hire at least one person as an employee in order to request active retirement in its 100% modality. However, it remains to be clarified that the activity performed by the contractor must be related to the company. For example, hire a waiter if your business is a bar. It does not make sense, as has been suggested in some places, to consider, for example, the domestic worker as an employee.
-If the contracting party is your child or family member: Since the 2017 reform, self-employed persons are entitled to hire a child or other family member as an employee, provided that it can be proven that this family member does not live with or depend on the hiring self-employed person, the law interprets him as an employee rather than an employee.