overindebtedness and company pension scheme
According to § 19 para. 2 InsO, over-indebtedness exists if the debtor’s assets do not cover the existing liabilities. The decisive factor is that this is not directly apparent from either the commercial or the tax balance sheet. For example, hidden reserves must be released for the valuation. In the case of the assets, i.e. the asset items, deductions are regularly made in the current assets. Discounts of 50 % and sometimes more are conceivable for work in progress. Discounts of between 20-50 % are applied to finished goods. over-aged stock is subject to higher markdowns (50%), while marketable items are subject to lower markdowns (20%). Discounts in the range of 20 to 80% are applied to trade receivables. A discount of 80 % applies in particular to receivables that have been due for a long time (e.g. for 6 months or more).
And the debts from a pension commitment
These liabilities can be found under provisions for obligations arising from pension commitments. The obligation results from the amount of the present value of the promised retirement pension benefits, e.g. for a 54-year-old GGF. The commitment of a constant monthly retirement pension of €3,000 from the age of 65 triggers a retirement pension present value according to the Heubeck mortality tables of €353,642 in total. This amount is to be available as a capital stock at the start of the pension in order to be able to service the monthly pensions for the pension recipient (GGF) with simultaneous interest on the respective remaining capital at 6 % p.a.. However, this does not guarantee the monthly pension for life, but only for the remaining life expectancy of a 65-year-old of 15.28 years according to the mortality table 1997/1999 (processed in the Heubeck mortality tables). If the retired GGF lives longer, he is fated to be left without a further old-age pension. Therefore, there are obviously two problems to be solved. Firstly, a higher capital stock will have to be accumulated with the progressive increase in the remaining life expectancy and, secondly, for further reasons of prudence, an interest rate of 6 % on the capital stock sinking in each case after a pension payment is not to be expected in the long term, but rather 3 % p.a. . Both real scenarios lead to the fact that at 3 % p.a. interest and under today’s mortality table 2004 R, the remaining life of a 65-year-old is calculated to be 16.07 years. interest rate and under today’s mortality table 2004 R, the remaining life expectancy of a 65-year-old is 16.07 years. In order to be able to pay the constant monthly pension of € 3,000 for at least this period, the company needs a capital stock of € 449,000. This means that today’s provisions are already set almost 30 % too low and the uncertainties regarding the long-term interest rate, which the Heubeck mortality tables still take into account at 6 % p.a., are enormous. Not to mention the as yet unforeseeable development of remaining life expectancy, because we all want to live to be 100 years old with the support of medical progress.
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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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