The ruling of the Federal Social Court:
Before the Federal Social Court (BSG) a GGF with its Unternehmensberatungs-GmbH lost: After the wording of the reasons for the judgement (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:
Dr. Jürgen Brand, President of the State Social Court of North Rhine-Westphalia, reported at further training events for tax consultants and auditors that the BSG’s ruling of 24.11.2005 had also surprised the defendant (German Pension Insurance Association): The Deutsche Rentenversicherung did not want to claim the managing director as a person 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 lawsuit:
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 prerequisites of § 2 sentence 1 no. 9 of the Sixth Book of the Code of Social Law – according to the pension insurance – must then be fulfilled by the company and have an effect on the insurance-law status of the assisting partners.
Greatest caution is still required!
While a “legal clarification” is being prepared in the responsible ministry, the question arises as to how managing directors can best protect themselves. This includes the so-called status check – an informal application to the Deutsche Rentenversicherung Bund is sufficient. Binding information must also be provided by the social security collection agency (these are the health insurance companies). There is a legal claim to this. Skilled consultants combine this with a clarification of whether previously paid social security contributions (e.g. unemployment insurance) would have to be reimbursed.
Tax consultant in liability:
Since in reimbursement cases a part of the repayment claims is regularly time-barred, the tax consultant is often responsible and would have to report a loss to his financial 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.
by Dr. Johannes Fiala
by courtesy of
www.experten.de (Published on 22.05.2006)
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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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