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 )
Petition proves: Pension commitment is not insolvency-proof but seizable:
Where the ?hare in the pepper? lies shows the report of the Petitionsausschuss of the German Bundestag. In the printed matter 15/5570 of 01.06.2005 it is called ?a Petent turns against the unrestricted seizability ? He stated that in the course of insolvency proceedings carried out in 2002 his life insurance policy concluded in 1989 with a pension commitment had been attached? Who is confronted as entrepreneurs with existing pension promise with it, is surprised: Were there not a mediator, an insurer and also the own tax advisor of the fact convinced that the insolvency protection after the advertisement seizes surely?
Correct advertising by insurers? Recently, a sales circular once again stated that “the Federal Court of Justice explicitly confirms in its ruling of 7 April 2005 that the pledging of a reinsurance policy is insolvency-proof even after the entry into force of the Insolvency Code”. Critics think that the intermediaries are negligently misled here, because every creditor of the GGF can seize the reinsurance 1. the insolvency administrator can always cancel, dissolve and collect the reinsurance, 2. the insolvency administrator can set off against the claims from the pledge. 3. why is this so obvious? Quite simply because according to the Heubeck values with 6% the pension provision is economically much too low ? the two to threefold value comes much closer to the reality of a commercial balance sheet (cf. § 253 HGB) or the over-indebtedness balance sheet (cf. § 19 InsO): Then the insolvency administrator, as in many GmbH insolvencies, will reclaim and set off too high withdrawals. This is the practice.
Offsetting has nothing whatsoever to do with the revocation of a commitment (cf. BGH ruling of 17.12.2001, Ref. II ZR 222/99): For the design, the ruling shows that the immediate bringing about of vesting ? time with the commitment – is recommended. 100% waterproof solution domestically?
There are various approaches to this. The first is to separate the “reinsurance” from the company so that an insolvency administrator does not have direct access to the insurance assets.
U-Kasse: Let the sales manager of a U-Kasse have his say: “We have made it clear to every insolvency administrator that the fund assets are earmarked for a specific purpose. By presenting our articles of association, we then sent every insolvency administrator packing? That’s good, but the devil is in the details ? it all depends on the benefit plan and the articles of association: And according to these, by no means every U-Kasse (for the GGF) is “insolvency-proof”.
An expert formulates in addition ?succeeds it to the sponsoring enterprise [also einem Insolvenzverwalter] a repurchase of the reinsurance to intersperse, then the saved up insurance means go in this way for the employees [also auch den GGF] lost. General statements that the U-Kasse is always insolvency-proof are incorrect.
In the way of a direct insurance with pension benefit can be saved likewise much: There is nevertheless here the possibility seizure-free amounts (dependent on the number of family members entitled to maintenance), in individual cases also already times 2000 euro, to secure against execution. But again, it all depends on the details, i.e. the exact conditions. A lump-sum benefit with an annuity option would be attachable, whereas an annuity benefit with a lump-sum option would hardly be attachable.
100% waterproof solution abroad? Another approach is to transform the company pension scheme into a private one. A private pension plan can be protected abroad, e.g. in Switzerland for the benefit of the spouse and descendants in the event of bankruptcy.
Trust solutions abroad should also be considered ? because, in principle, enforcement and bankruptcy law is a matter for the national legal system; but here, too, the details matter, for example, international agreements on insolvency.
From Pfefferminzia: ?Private insolvency protection is important !? writes a renowned insurer. But the insurance brokers concerned are wondering why the whole truth cannot be put on the table. Many entrepreneurs ask for solutions ? numerous entrepreneurs and tax consultants with bAV reorganisation needs are waiting for the broker.
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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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