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

by RA, Bankkaufmann Rüdiger Wilhem Lohkamp and RA, Bankkaufmann Johannes Fiala – Kanzlei Fiala, Freiesleben & Weber – RA, PA, StB & WP (Munich), www.fiala.de Examination of the plausibility: Mediation obligation also with the customer at the
Front: The Federal Court of Justice has clarified, among other things, in its judgement of 13.01.2000, NJW-RR 1993, 1114, that an intermediary “irrespective of the advertising and laudatory character of his statements … is obliged to provide correct and complete information about the investment project, … “. Which customer and/or its tax advisor already knows itself with the ZWK? The BGH concludes from the fact that consultation is necessary here as it were on highest level: Extent and intensity of the obligation to inform also of the investment mediator depend, as stated, on the respective circumstances of the case. In addition the total situation belongs, as it presents itself with the individual investment decision. The business experience and the specific level of knowledge of the prospective investor must also be taken into account.” Every customer is entitled to expect that the intermediary’s knowledge is “based on objective information”. “In principle, a prospective investor also assumes this in the case of a (mere) investment intermediary. That this was not in fact the case, 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 for assessment.” Note: Good faith does not protect against liability or penalty! Simple plausibility checks must be made even by a (simple) intermediary. A selection of some typical errors will be presented here: Intermediary tip: Put each model concretely on the test bench, not only at the tax office by an individual inquiry with official notice, but also at the competent collection agency for social insurance, § 28 h SGB IV: Do not let yourself be referred to the auditors of the “Deutsche Rentenversicherung Bund” – they only become responsible in the case of a company audit (Bp). The employer has a right to this. 1. misconception: secure insolvency-proof pledge of the ZWK for the GGF On training courses ZWK providers proclaim that the pledge is “bomb-proof”? Unfortunately, this is not the case. Even if no insolvency administrator is appointed, any creditor can attach the claims of the GmbH against the GGF on account of insolvency liability (e.g. under § 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’s tip: Have the GGF/customer sign that he was informed about the incompleteness of the pledge – as long as you do not know a better model. 2nd mistake: The main thing is that “in the event of insolvency” provision is made contractually by “assignment” If you read in a ZWK contract: “For these purposes the trustor/employer already now assigns – subject to a condition precedent in the event of insolvency – the “reinsurance of the ZWK” to the accepting …..” – And: if you have already sold something like this to your customers, you are probably sitting on a liability case! Since 1918, the Reichsgericht, the Bundesarbeitsgericht and the Bundesgerichtshof have regularly forbidden it, and “cashed in” on corresponding regulations, if security was created contractually “in the event of possible bankruptcy proceedings”. For the scientifically interested professional, here are the judgments: BAG Urt. 16.05.1978, RG Urt. 28.01.1918, BGH Urt. 16.12.1957, BGH Urt. 06.02.1961. Mediator’s tip: Distrust such training managers who claim “the renowned law firm XY has examined the concept” without presenting 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 the advertisements say ” … I’m not stupid after all!?”. 3. misconception: the lien for the heirs is safe Some ZWK providers, as well as some insurers, still use simple pledge forms or clauses today. 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-safe lien model also ends with the ZWK (as, by the way, 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 lien takes precedence, § 1209 BGB. This does not satisfy the requirement of § 7d SGB IV, according to the prevailing opinion. Consider whether you as an intermediary would be personally liable for aiding and abetting? Mediator tip: do not take over to legal and fiscal questions advisory tasks, if you do not know yourselves 100% with it. Error 4: In the event of insolvency, we have a trust agreement with power of attorney for the settlement Both the “safe” power of attorney and the “safe” trust agreement are ineffective or null and void in case of doubt or insolvency. Oh, you didn’t know that? The daily press reported that “managing” trust models in connection with junk real estate are null and void due to violation of the legal advice law (cf. exemplary BGH judgement of 16.12.2002, Az II ZR 109/01). It is good to know that only so-called “administering trusteeship” is permitted to the tax consultant 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 may then still act? You should have this explained to you in detail. Mediator tip: According to the BGH judgement of 22.02.2005 (Az. XI ZR 41/04) also a Treuhand GmbH needs in the doubt a permission for legal advice. About the permission you can make sure by simplest inquiry with the district court as well as with the chamber of tax advisors. But please, do not forget to present the respective trust agreement – otherwise the “general” information is worth nothing. Error: With the ZWK I can sell closed participations without hesitation Exactly the opposite is correct. With the ZWK, the credit balances of the employees must be available for disbursement as soon as possible because of a conceivable “failure” at any time. Also the risk that the money from the “gross savings” is later – because of not prospektgemäßer development of the plant – (partly?) lost, would not be to underestimate. Mediator tip: Inform for example under www.direkteranlegerschutz.de about the meaning of an IDW-S4-WP-expertise and the complete performance record. Consider that the incident can occur at any time – this means any time possibility for liquidity: Here it concerns the question of a second mark for LV and closed participation, as well as the Zillmerungshaftung for employers and naturally the Finanzdienstleister. An excellent consulting protocol alone, does not always help. 6. mistake: My ZWK co-operation partner is liable yes, is insured and lawyer-advised Some offerers maintain, they are insured – however a confidential inquiry with the insurer results in a false indication. 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 there is only with the agent after § 84), then apples are mixed with pears. It has then nothing more with logic, but at most with experience to do, if already such legal basis errors question a ZWK concept? Mediator tip: Trust is good – control is better. Think of a creditworthiness inquiry about the ZWK provider or the request for an insurance confirmation: You will be surprised what is not insured. Just ask your own VSH insurance broker (e.g. www.rwb-finanz.de ): How high is your risk as an intermediary that the ZWK provider later disappears (not only from the market) – and you then have to deal with the customer’s liability issues alone? 7. misconception: the ZWK credit is paid out free of seizure Unfortunately, no, in the event of an incident everything is taxed – “a little unfavourably” according to §§ 19, 34 EStG (fifth regulation). Insolvency is a disruptive event, § 41 InsO – despite § 7d SGB IV – this ends the option of reinsurance in a classic bAV. And if the money of the ZWK is settled as a wage all at once, the garnishment-free amount is only available once in the case of an insolvency, in the case of a single person 940 Euros (minus 1 cent): This for the worst case that the insolvency administrator offsets, because of the manager or GGF liability. Intermediary tip: Specialist lawyers know that only the combination of pledging and double trusteeship (including security trusteeship) lead to the goal – you would have to check the initiator’s model for this in the case of insolvency protection. The employee must have a legal position that is “beyond doubt not subject to insolvency” – the initiator must first prove this to you. A salary auditor reveals “… we know that most of the models on the market are not really protected against insolvency”. And what do you want to say to the customer? Solution: Banks and insurance companies also offer concepts for insolvency protection. The solution for optimisation for the GGF does not always lie in the domestic market.
(experten.de (14.12.2005))
Courtesy ofwww.experten.de.

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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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