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)
The judgement of the Federal Social Court: Before the Federal Social Court (BSG) a GGF with its management consultation GmbH lost: After the wording of the judgement reasons (Az. B 12 RA 1/04 R) also a GmbH managing director active only for its own GmbH is subject to the pension insurance obligation. The Federal Minister of Social Affairs and the German Pension Insurance Federation then rowed back publicly. However, the issue is far from over.
President of the State Social Court explains: Dr. Jürgen Brand, President of the State Social Court of North Rhine-Westphalia, reported at training events for tax consultants and auditors that the ruling of the BSG of 24.11.2005 also surprised the defendant (German Pension Insurance Association): The German pension insurance did not want to claim the managing director as a person with its contribution notice because he did not employ any employees and only worked for one client, but because the GmbH did not employ any employees and only worked for one client.
Pilot action: Deutsche Rentenversicherung wanted to have it established that it could take action against the managing director in the relevant cases. It considers that the judgment of the BSG does not correspond to the meaning and purpose of the legal provision.
However, the pension insurance institutions maintain their view that managing partners are liable for pension insurance if the company does not employ any employees and essentially only works for one client. The requirements of § 2 sentence 1 no. 9 SGB VI ? so the pension insurance ? would then have to be fulfilled by the company and would have an impact on the status under insurance law of the employee shareholders. Great caution is still advised !
While the responsible minister is preparing a “legal clarification”, the question arises as to how managing directors can optimally protect themselves. This includes the so-called status check ? an informal application to the German Pension Insurance Association is sufficient for this. Binding information must also be provided by the social insurance collection agency (these are the health insurance companies). There is a legal claim to this. Skilled advisors combine this with a clarification as to whether previously paid social insurance contributions (e.g. unemployment insurance) would have to be refunded.
Tax advisor in liability: Since in refund cases a part of the repayment claims is regularly time-barred, the tax advisor is often responsible and would have to report a loss to his pecuniary loss insurance. In this situation, managing directors and family members need new sensible pension products and possibly a process financier who will take over the recovery of premiums on a profit basis.
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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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