– only precaution on
level may be protected from creditors –
The sales market of the securitization of the Rürup capital
For many years, insurance associations, insurers and the insurance sales force have been praising the Rüruprente in advertising brochures as a seizure-protected old age provision. Now, according to a new letter from the Federal Minister of Finance (BMF) dated 31 March 2010 (Ref. IV C 3 – S 2222/09/10041 ), this proves to be a mere marketing lie for customer acquisition.
The fact that not only saved assets in a Rürup pension can be seized, but also the part of the Riester credit balance which is not state-subsidized, had already been decided by the LArbG Mainz (Az. 3 Sa 414/06) in a judgement of 03.11.2006 in the case of a certified Riester mini pension in the saving phase. The state subsidy is regularly based on only 4% of gross income, which in real terms will correspond to a pension of around 6% of gross income – too little to live on, too much to die.
Attachment despite contractual prohibition of assignment and transfer
The Rürup pension or the so-called seizure-protected pension scheme for self-employed persons requires a contractual prohibition of assignment and transfer. Insurers and distributors never tired of concluding that this ban was unseizable. But now the BMF has made it clear: the attachment of the … There is no contractual prohibition of assignment and transfer of pension assets. Accordingly, the Bundesgerichtshof (BGH) had already decided (decision of 25.08.2004 IX a ZB 271/03) that even a provision in the articles of a pension scheme regarding the non-transferability of the attachability does not preclude this.
Attachability of private pension assets follows from constitutional law
The protection of the property right of creditors who wish to seize privately saved pension assets may only find a constitutional limit where the principle of the welfare state is affected. A creditor’s claim enjoys the protection of the Basic Law as property it may not be withdrawn from the creditor as easily by contractual transfer prohibitions as the insurers would have liked.
Rürup: Saving to relieve the state and for the creditors
The Rürup lie of the insurers was justified by the fact that an exclusion of exploitation was contractually agreed and transferability was excluded. But such contractual exclusions don’t save you from foreclosure because… constitutional protection of creditors (the state may only protect the social minimum from the creditor in accordance with the constitution) has priority, as the BMF has now again emphasised. Even the Finance Office is probably reluctant to watch how the self-employed (freelancer and tradesmen) set aside a generous retirement pension and, for example, owe their taxes.
The Rürup saver also saves for the State (because of the savings in later support) and, by the way, for its creditors (possibly also the tax office). According to the ZPO, courts will only leave the existence minimum, to relieve the social welfare office, free of seizure, because the debtor should not be able to excuse himself to costs to the general public. The seizure-free limits during the savings phase and later after the start of retirement are set at a correspondingly low level in the law on the seizure-free pension scheme for self-employed persons. These by no means reach the maximum limits up to which Rürup-contributions can be considered proportionately as special expenses (20,000 to 40,000 EUR per year), so that a large part of the saved Rürup assets remain attachable.
Insurers ignore clear legal situation
Since the legislator expressly provides by law for the seizure of the saved capital above the exemption limits, one must admire the courage of insurers and expellees who consider themselves smarter than the legislator and simply deny this possibility. Yet to this day, they have not been able to produce a single judgement that confirms their fairy tale of the Rürup Treaty being exempt from seizure.
Nor does the clear legal situation prevent the Rürup saver from being entitled to payment of a surrender value upon ordinary termination. Because already simply directly from the law for the seizure-protected age precaution of self-employed persons (§ 851c ZPO), it follows that the saved Rürup capital can be seized before the start of retirement above the limits set by social assistance. insolvency administrator, tax office and other creditors will know how to enforce these claims, which are clearly left to them by law, against the insurers as well.
What does the law say?
§ Section 851 c para. 2 Sentence 3-4 – Attachment protection for retirement pensions:
If the surrender value of the retirement provision exceeds the unseizable amount, three tenths of the excess amount is unseizable. Sentence 3 shall not apply to that part of the surrender value which exceeds three times the amount specified in sentence 1.
§ 169 VVG – surrender value
(1) If an insurance policy which provides insurance cover for a risk where the occurrence of the insurer’s obligation is certain is cancelled by cancellation on the part of the policyholder or by withdrawal or challenge by the insurer, the insurer must pay the surrender value.
(2) The surrender value shall only be paid to the extent that it does not exceed the benefit in the event of an insured event at the time of termination. The portion of the surrender value not paid thereafter shall be used for premium-free insurance. In the event of withdrawal or rescission, the full surrender value must be paid.
(3) The surrender value is the actuarial reserve of the insurance policy calculated in accordance with recognised actuarial rules using the calculation bases of the premium calculation at the end of the current insurance period
It is therefore also not true what the insurers alternatively claim that there is no surrender value at all for the Rüruprente. Rather, it is always calculated from the accumulated actuarial reserve. It is only not payable in the event of ordinary termination because no death benefit has been agreed at the time of termination. Nevertheless, it is present in the savings period, because it is used to determine the non-contributory pension as a premium-free insurance. The surrender value must then actually be paid out in the event of withdrawal or rescission, and also in the event of extraordinary termination in accordance with § 314 BGB (z. B. because the employment agency does not provide any services according to ALG II or Harz IV because of the crediting of the saved assets) and also according to § 851c ZPO – in the case of attachment.
Other opportunities abroad?
However, there are corresponding regulations abroad, such as in Liechtenstein and Switzerland, for assets for pension provision protected against seizure in any amount. The corresponding insurers take advantage of this in their advertising by advertising customers in Germany with insurance secrecy and bankruptcy protection. On closer examination, this too turns out to be a distribution lie in 99.9% of cases, because according to private international law and state international treaties, this alleged bankruptcy protection, advertised as a princely privilege, cannot intervene at all.
Solution approach for the practice: Professional asset protection
However, there are ways to protect your own assets without any tax fraud, e.g. through foundations. However, these are not off-the-peg products, as some Swiss bank have offered them to their customers for the purpose of aiding money laundering.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.juraforum.de (published on 26.04.2010)
www.konradin.de (published in Die Tabak Zeitung 28.05.2010)
www.stbverband.de (published in Association News 03/2010, 12-13)
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About the author
PhD, 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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