– Why setting up a bAV blocks the way to balance sheet simplification -.
Following the Bundestag, on 14 December 2012 the Bundesrat also approved the draft bill on the Small Capital Companies Accounting Law Amendment Act (Kleinstkapitalgesellschaften-Bilanzrechtsänderungsgesetz).
(MicroBilG) was approved. The promised EReduction in the costs of accounting for micro-corporations (GmbH, AG, GmbH & Co KG)
will, however, usually not be achieved at all.
Objective of the MicroBilG
The MicroBilG serves to transpose the requirements of the EU’s Micro Directive (2012/6/EU) into national law. It is necessary that on two consecutive
The maximum amount of the cash flow from operating activities will not exceed two of the following limits on the reporting dates:
- Turnover up to Euro 700.000,
- Balance sheet total up to Euro 350,000 and
- Average number of employees up to 10.
This considerably reduces the effort for the annual financial statement, because an appendix can be omitted, collective items are increasingly possible, and instead of a
disclosure, simple filing is sufficient.
Company pension scheme (bAV) blocks cost reduction in annual financial statements
Due to the asset values of the reinsurance and the liability values of the pension provision, the balance sheet total quickly rises above EUR 350,000 as a result of a company pension scheme,
because this only just corresponds to the value of future or current pensions of around EUR 2,000 per month.
Then both other requirements must be met in order to avoid disclosure obligations, namely annual turnover below 700 TEUR and a maximum of 10 employees.
on average.
This means that companies wishing to take advantage of the balance sheet simplifications must in any case keep their annual turnover below EUR 700 thousand,
which may severely limit profits. A low balance sheet total would be more feasible – without a pension plan.
Not setting up an occupational pension can save costs
If, on the other hand, the company does not have a bAV and operates with little capital (balance sheet total less than EUR 350 thousand), it can have unlimited annual turnover,
as long as the number of employees is less than 10. This can often be achieved by outsourcing work rather than providing it with in-house staff,
which indirectly also reduces capital requirements and thus the balance sheet total (e.g. less capitalised operating inventory for the workplaces).
Waiving the establishment of an occupational pension can increase returns
Therefore, before introducing an occupational pension scheme and, in particular, a pension commitment to the managing director, it should be considered whether this entails extended disclosure obligations.
are connected. In any case, it may be undesirable to disclose one’s own annual report to competitors, but also to prepare and publish financial statements.
otherwise cause additional effort and costs. There are often better and more flexible alternatives than an occupational pension.
Main danger: Unqualified advice from salespeople posing as occupational pension experts
Brokers and insurance agents can also be held liable here if they go beyond simply brokering an insurance product to reinsure
provide extensive consulting services upstream of an existing occupational pension commitment – often illegally without a permit – and thereby draw attention to such and other circumstances.
as a rule do not indicate. Experts report that more than 90% of occupational pension commitments are incorrect, and then often mean a risk of insolvency.
However, this is sold as a tax-saving model, without a view to additional costs and possibly negative returns.
Inspection by independent experts protects against errors
In most cases, a more detailed actuarial examination of the insurance contracts and consulting documents reveals that the entrepreneur is not responsible with regard to the
The company’s management was grossly misguided in its assessment of the functioning, costs, value and financially viable pension amounts of the contracts and reinsurance policies concluded.
Often the promised maturity benefit of the insurance was from the beginning for the expert recognizably excessive – but even this would have surely only to the
Funding of approximately half of the promised pension was sufficient. If this is determined in a timely manner based on independent actuarial review,
there is a good chance, with the help of experienced lawyers, to achieve rectification, compensation or reversal in good time before the statute of limitations sets in,
and thus also reduce the excessively high balance sheet total.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
Our office in Munich
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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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