bAV: Liability bomb instead of insolvency protection: working time account (ZWK)

by lawyer, banker Rüdiger Wilhem Lohkamp and lawyer, banker Johannes Fiala ? Law firm Fiala, Freiesleben & Weber ? RA, PA, StB & WP (Munich),www.fiala.de
Plausibility check: mediator’s duty also at the customer’s front:
The Federal Supreme Court clarified among other things in its judgement of 13.01.2000, NJW-RR 1993, 1114 that a mediator ?regardless of the recruiting and praising character of its statements ? is obligated to correct and complete information over the investment project, ?
Which client and/or his tax advisor is already familiar with the ZWK? The BGH concludes from this that advice is required here at the highest level, as it were: ‘The scope and intensity of the duty to provide information also of the investment intermediary depend, as stated, on the respective circumstances of the case. In addition the total situation belongs, as it represents itself with the individual investment decision. Also on the business experience and the concrete knowledge conditions of the investment prospective customer are to be depended ? Each customer may expect that the knowledge of the mediator ?on objective information ?is based. Of it an investment prospective customer proceeds in principle also with a (bare) investment mediator. That this was not the case in reality, the defendant had to correct, even if he acted in good faith – as the court of appeal assumed – because he was not aware of his own inadequate basis of assessment?
Note: Good faith protects neither from liability nor from punishment! Even a (simple) intermediary must carry out simple plausibility checks. A selection of some typical errors will be presented here:
Facilitator Tip: Put every model concretely to the test, not only at the tax office by an individual inquiry with official notice, but also at the responsible collection agency for the social insurance, § 28 h SGB IV: Do not let yourself be referred to the auditors of the “Deutsche Rentenversicherung Bund” (German Pension Insurance Association) ? they only become responsible in the case of a company audit (Bp). The employer has a right to this.
1. misconception: secure insolvency resistance of the ZWK pledge for the GGF
At training courses, ZWK providers proclaim that the lien is ?bombproof? Unfortunately, this is not the case. Even if no insolvency administrator is appointed, any creditor can seize the claims of the GmbH against the GGF on account of insolvency liability (e.g. in accordance with § 64 GmbH) (e.g. BGH ruling of 11.09.2000). This opens the way for the creditor of the GmbH (as well as the GGF) to access the reinsurance or company pension scheme. The only safe option for the GGF then appears to be an application for “social benefits” and the like.
Intermediary tip: Have the GGF/customer sign that he was informed about the incompleteness of the pledge ? unless you know a better model.
2. mistake: the main thing is that ?in case of insolvency? is contractually provided for by ?assignment?
If you read in a ZWK contract: ‘For these purposes, the trustor/employer already now assigns the ‘reinsurance of the ZWK’ to the accepting ’employer’, subject to a condition precedent in the event of insolvency’. ? And: If you have already sold something like this to your customers, then you are probably sitting on a liability case!
Since 1918, the Reichsgericht, the Federal Labour Court and the Federal Supreme Court have regularly forbidden it, and ‘cashed in’ corresponding regulations, if a security ‘for the case of possible bankruptcy proceedings’ was created contractually. For the scientifically interested professional here the judgements: BAG Urt. 16.05.1978, RG Urt. 28.01.1918, BGH Urt. 16.12.1957, BGH Urt. 06.02.1961.
Facilitator Tip: Distrust such training managers who claim ‘the renowned law firm XY has examined the concept’ without providing any proof. Make sure that so-called “expert opinions” actually refer to unchanged sample contracts. Insist that you receive a complete copy of the expert opinions and concept reviews ? otherwise you can never be sure that you are selling what has been reviewed: As they say in advertising ? ? I’m not stupid! ?
3. misconception: the lien for the heirs is secure
Some ZWK providers, as well as some insurers, still use simple pledge forms or clauses. As soon as the law (e.g. in the case of a divorce petition), a will or a contract of inheritance results in one person receiving “the credit balance from the ZWK model” and another person receiving the lien, i.e. if the two fall apart, the oh-so-secure lien model also ends with the ZWK (as, incidentally, with the pension commitment) without any further action.
by the way: If a ZWK provider offers you as an intermediary a simple bank form pledge, then the bank GTC pledge law takes precedence, § 1209 BGB. This does not satisfy the requirement of § 7d of the German Social Code, Book IV. consider whether you’d be personally liable as an agent for aiding and abetting?
Facilitator Tip: do not take on any advisory tasks on legal and tax issues if you are not 100% familiar with them. Error: In the event of insolvency, we have a trust agreement with power of attorney for the settlement of both the “secure” power of attorney and the “secure” power of attorney. Power of attorney, as well as the ?safe? Trustee contract are in doubt or in the case of insolvency ineffective or null and void. Oh, you didn’t know that? It was reported in the daily press that “managing” trustee models in connection with insolvency are invalid. Trust models in connection with scrap real estates are void because of offence against the legal advice law (see exemplarily BGH judgement of 16.12.2002, Az II ZR 109/01). It is good to know that only so-called ?administrating trusteeship? is permitted to the tax adviser according to § 57 III StBG. However, it is more important that all orders of the employer to the trustee according to §§ 115, 116 InsO end with the opening of insolvency: Without an administrative trust, all that often remains is a presumed ?management? without a mandate. Which trustee is then still allowed to act? You should have this explained to you in detail.
Facilitator Tip: According to the BGH judgement of 22.02.2005 (file no. XI ZR 41/04), a Treuhand-GmbH also requires a licence to provide legal advice in case of doubt. You can find out about the licence by simply asking the local court or the chamber of tax advisors. But please, do not forget to present the respective trust agreement ? otherwise the ?general? information is worth nothing. information is worth nothing.
5. misconception: at ZWK I can sell closed investments without hesitation
Exactly the opposite is correct. At ZWK, credit balances of employees must be available for payout immediately, because of any ?failure? possible. Also the risk, money of ?gross-savings? later ? because of not prospectus-conform development of plant ? is (partly?) lost, would not be to underestimate.
Intermediary tip: Find out, for example, atwww.direkteranlegerschutz.de about the importance of an IDW-S4-WP expert opinion and the complete performance record. Consider that the incident can occur at any time ? this means the possibility of liquidity at any time: here we are dealing with the question of a second marker for LV and closed participations, as well as the Zillmerungshaftung for employers and, of course, the financial services provider. An excellent consultation protocol alone, does not always help.
6. mistake: my ZWK cooperation partner is liable, is insured and is advised by a lawyer
Some providers claim to be insured ? but a confidential inquiry with the insurer yields a false positive. A look at the cooperation partner contract can also provide important clues: If there on the one hand of a broker after § 93 HGB the speech is, and on the other hand of an ?exclusivity? (which exists only with the agent after § 84), then apples are mixed with pears. It has then nothing more to do with logic, but at most with experience, if already such legal basic errors question a ZWK concept?
Intermediary tip: Trust is good ? Control is better. Think about a credit inquiry about the ZWK provider or the request for an insurance confirmation: you will make eyes, what is not insured there. Just ask your own VSH insurance broker (e.g.www.rwb-finanz.de): How high is your risk as an intermediary that the provider of the MCI will later disappear (and not only from the market)? and then you have to deal with the client’s liability issues on your own?
7. misconception: the ZWK credit is paid out free of garnishment
Unfortunately no, in the event of a malfunction everything is taxed ? …a little awkward? in accordance with §§ 19, 34 EStG (one-fifth rule). Insolvency is an incident, § 41 InsO ? despite § 7d SGB IV ? this ends the option of transferring cover to a traditional occupational pension scheme. And if the money from the ZWK is settled as a wage all at once, the garnishment-free amount is only available once in the event of an incident, 940 euros (minus 1 cent) in the case of a single person: this is for the worst case that the insolvency administrator offsets, because of the manager or GGF liability.
Facilitator Tip: Specialized lawyers know that only the combination of pledging and double trust (among other things security trust) lead to the goal ? you would have to check the initiator’s model for insolvency protection. The employee must have a legal position that is “undoubtedly not subject to insolvency”. The initiator must first prove this to you. A wage examiner reveals accordingly in addition from practice ?? we know that most models on the market are not really insolvency-protected ? And what do you want to say to the customer?
Solution approach: Banks and insurance companies also offer concepts for insolvency protection. The solution for optimisation for the GGF does not always lie within the country.

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About the author

Dr. Johannes Fiala
PhD, MBA, MM

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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