Company pension scheme: Invalidity of contracts with the management consultant
In the market of occupational pension consultancies, different models of cooperation between tax advisors, financial service providers and management consultants can be identified. Many distribution models do not hold up in practice.
Under the heading “legal design”, some sales or management consultants offer, among other things, the “formulation of pension commitments, as well as the associated shareholder resolutions ….”. ” by an attorney. But where are the limits of cooperation with the professional lawyer in practice?
First model with home visit:
Some financial service providers like to adorn themselves with a professional lawyer. The telephone canvassing leads to an appointment, to which the financial service provider then brings an (unemployed?) lawyer. The first or home visit to customers in the company is offered – and of course this action of a display of honorary professional competence does not cost the (potential) customer a penny. However, this has two catches: On the one hand, the lawyer himself (and, incidentally, not via third parties, a management consultant-bAV or any other financial service provider) may offer a house visit to the potential client in an advertising manner, because in the opinion of the princes of the profession this would be ingratiating and enticing, and therefore not objective. The further catch is that a lawyer may not offer his services free of charge, and a fortiori may not advertise for a specific order in an individual case that is at issue here.
2nd model with StB/RA as staff:
The range of services offered by several management consultants in the area of occupational pension schemes includes, among other things, the legal structuring of pension commitments or, for example, the examination of exemption from social insurance obligations. These services are proactively offered to financial service providers and insurers (e.g. for the “broker service”). However, advising clients of an occupational pension consulting firm does not work through a permanent employee (RA/StB). Three reasons are decisive: On the one hand, in-house lawyers working in banks, for example, are repeatedly instructed by their chambers that they are only allowed to advise their own firm, not its clients. Cooperation in the sale of insurance and financial products in return for commission is also incompatible with the profession of tax advisor or lawyer – the withdrawal of the licence by the chamber of the honorary profession may be threatened. Furthermore – and this is crucial for the occupational pension consulting firm – it is of no use if a lawyer or tax advisor as managing director or other employee handles the clients’ inquiries: In its decision of 22.02.2005, the BGH once again clarified that an occupational pension consulting firm (e.g. a limited liability company) – if it offers legal advice – also requires a permit as such in accordance with the Legal Advice Act. If permission is not granted, the consultancy contracts are null and void.
3. model of the management consultant
Some financial service providers offer not only legal and tax advice, but also numerous business management service modules. Legal and tax advice, on the other hand, takes a back seat as one of several services. This also does not make the service offer legal, because according to a BGH decision of 23.01.1981 it is not possible to offer advice in the tax or legal field alongside other professional tasks. Licensed pension and insurance consultants have better cards here, who of course then also have to charge according to a scale of fees – i.e. without commissions. Incidentally (then often no longer quite so “independent”), financial service providers may of course provide tax and legal advice themselves, but only as so-called auxiliary business in close connection with a product sale in the foreground. The financial services provider is liable for the correctness of such advice – regardless of whether he is insured for it or not.
4. model of distribution remuneration
Some occupational pension distributors or occupational pension consultants offer their partners, including independent financial service providers, a distribution partner remuneration. This involves the sales partner in the payments made by the end customer/entrepreneur etc. for “expert opinions on pension commitments” or “verification of social security status”. The expert opinions or examinations are prepared by a “permanent employee” or lawyer as a cooperation partner. The only silly thing about this model is that the retained lawyer is not allowed to give up any part of his fee, either directly or indirectly through an intermediary bAV distributor. This also applies if the lawyer concludes his own contract with the client.
5. model of tax consultant remuneration
The following particularly nice model has been devised by a bAV distributor: The distribution partner or financial service provider concludes a contract with the tax advisor. The tax consultant is promised an hourly remuneration: “The prerequisite for this is that the financial service provider receives remuneration / commissions from brokered business.” Many an honorary professional generates a considerable turnover in cooperation with financial service providers – but a remuneration for success under this “condition” of commission is prohibited for the honorary professional. In practice, there are also said to be wives who are happy to hold out their hand when the opportunity arises – not infrequently via a legally registered trade. The StB himself is not allowed to run a business – i.e. he is also not allowed to act as a tip-giver on a success basis, as this would jeopardise his own licence.
6. cooperation model
It may be permissible and sensible for the “management consultant-bAV” for business and financial advice to act as an employee of a tax firm. Standard hourly rates are then agreed – no commission is paid.
7. model of cooperation
The topic of occupational pension consulting touches on a wide range of disciplines. The clean separation of tasks and responsibilities often does not mean a “solution to all occupational pension problems by a single provider”. There is still a legal opinion that prohibits the financial service provider from giving legal advice. In terms of the seal, the honorary professional is not permitted to work for the purpose of earning a commission from financial brokerage. Cooperation is required.
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About the author
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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