*by Johannes Fiala, Lawyer (Munich), M.B.A. (Univ.Wales), M.M. (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Banker (www.fiala.de)
Fictitious self-employment of a commercial agent ? the questions: Is there an unconditional obligation to comply with all instructions given by the principal? Is there an obligation to submit regular detailed reports at short intervals? Is there an obligation to work on the client’s premises? Is there an obligation to use certain hard- and software for a better control possibility of the client? Has a minimum sales target been set at a high level, combined with sanction rules (commission rate increase for multiple brokered orders, etc.)? Is there a prohibition on hiring subagents? Is there an obligation to work according to certain tour schedules? Is there an obligation to work through address lists? Is there a ban on soliciting customers on your own initiative? If the answer to three or more of the questions is yes, 99% of people are obliged to be insured under the statutory pension insurance scheme. The boss will be pleased.
Fictitious self-employment of a managing partner: A management consultant worked exclusively for his limited liability company, which meant that he personally had one client ? his limited liability company naturally had many clients. The tax audit brought this to light. The calculation of the auditor: Additional payment for the time since 01.01.1999 ? and for each month of the delay on the contribution 0.5% per month. But beware, the 0.5% per month is regularly not tax deductible ? an interesting effective interest rate for the social security collection agency. The complaint: Before the Federal Social Court the GGF with its GmbH lost: Since 22.02.2005 the judgement reasons are present (Az. B 12 RA 1/04 R). Afterwards also a GmbH managing director active only for its own GmbH is subject to the pension insurance obligation, without if and however. This applies naturally then also analogously to the director of an English Ltd. with German address. The pension is safe: The pension is safe for the GGF by an additional payment, because the currently necessary minimum insurance periods are thus usually reached easily. However, the amount of the pension is quite uncertain in view of the budget situation as well as ?zero rounds? Responsibility of the tax advisor? According to the wording of the law, the result of the legal dispute was foreseeable, § 2 sentence 1 No.9 SGB VI. Presumably hundreds of thousands of GGF are affected ? and their tax advisors. Occasionally the employees of the payroll department have more idea of bAV possibilities and social security questions than the bosses: The reason for this is often the complexity of the matter. Tip for the intermediary: The GGF should immediately seek a status check on his own initiative so that he is covered as far as possible. An informal application to the “Deutsche Rentenversicherung Bund” (German Pension Insurance Association) in Berlin is sufficient. (Berlin) is sufficient. During the bAV consultation, the social security obligation in the pension insurance may be incorrectly stated. This could later be considered incorrect by the court. Who enrolls as a GGF, for example for a political study, can still be legally guaranteed in the 20th semester in the pension insurance still insurance-free. Curse or blessing of compulsory insurance: Compulsory pension insurance can be a blessing, as a look at § 6 BetrAVG shows: Even the GGF, viewed in terms of time, is already entitled to the company pension if he draws a statutory full pension. Some factual gaps in the commitment (unemployment, invalidity, etc.) can thus be bridged in terms of time. It is another matter how long the reinsurance will be economically sufficient before insolvency threatens or the liquidation of the GmbH has to be decided. Thus, advisors have every reason to conscientiously check the provision for their clients ? for current reasons.
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About the author
Dr. Johannes FialaPhD, 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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