When the insolvency administrator gets some Riester assets –
The Federal Court of Justice (BGH, ruling of 16 November 2017, file no. IX ZR 21/17) decided that § 851 I of the Code of Civil Procedure (ZPO) in conjunction with § 97 I of the Income Tax Act (EStG) order the non-transferability of the Riester contract assets subsidised by allowances. If legal claims are legally – i.e. not only contractually – non-transferable – even in the case of certain easements in real estate law – they are also unseizable. This applies, for example, to the right of residence, but only if the design is appropriate. On the other hand, an old-age part is not unseizable (BGH decision of 4 July 2007, ref. VII ZB 86/06) but is conditionally seizable, just like maintenance pensions or foundation contributions.
When can Rüruprente or basic pension be seized?
The situation is different with the basic pension or Rüruprente, as this is regularly only contractually non-cancellable, assignable and lendable. In this case, an attachment is regularly considered, unless one has made sure that the requirements of § 851c ZPO have been complied with – because there is no automatic design in this respect. More often, everything can then already be seized during the savings phase instead of having up to 256,000 € of the deposits protected against seizure (graduated according to age). If this amount is exceeded by up to twice this amount according to the ZPO, 70% – beyond this, everything is then completely seizable.
Termination of the Riester contract is harmless
The possibility of terminating the contract is irrelevant. Rather, in order to avoid seizure, and to prevent insolvency administrators from accessing the assets, one’s own savings must be eligible – which can change in amount from year to year. Furthermore, an application for an allowance must already have been submitted, which is only possible retroactively for two previous years.
When Riester assets are at least partially attachable?
More often, applications for allowances are missing or payments are only partially eligible, so that both the attachment and the access of the insolvency administrator remain possible in the payment phase, i.e. before the start of the pension. In the payout phase, all sources of income are added together – if the garnishment-free amount (currently € 1,139.99 p.m. for single persons) is exceeded, Riester payouts – even in advance – can be garnished. If the seizure is carried out up to one month before the opening of insolvency proceedings, it will be cancelled – otherwise it will also survive the insolvency proceedings and will not be settled by the discharge of residual debt.
Riester pensions can be seized by millions
For years, debt collection agencies have complained that they did not know what is attachable in Riester contracts – they preferred to wait until insolvency administrators had answered such questions. With currently more than 16 million Riester contracts, up to more than 11 million have probably applied for or received a state allowance. In addition, those contracts are also eligible for access by insolvency administrators, creditors and collection agencies, where the payment is partly not eligible at all, and therefore attachable. This is because the subsidy depends, among other things, on the previous year’s income, whereas the policies usually have fixed or dynamic premium rates, i.e. from the second policy year onwards it is increasingly likely that they have not been adjusted to the current conditions. Who goes to the consultant every year to determine the amount of the contribution as a tailor-made suit?
Riester for future recipients of the basic security pension?
At least € 100 p.m., of the excess amount (concerning company, basic and Riester pensions) plus 30%, a good € 200 in total (half of the Hartz IV standard rate) should no longer be credited to the basic provision from 2018 (planned as § 82 paras. 4 and 5 SGB XII n.F.). The (Riester) pension from all contributions, allowances and the income from them is completely – 100% – taxable, which means that the tax authorities can reclaim at least part of the allowances. Late returnees from private health insurance then pay the full health insurance and nursing care insurance contribution as voluntarily insured pensioners.
Efficiency before effectiveness?
However, the question of old-age provision only arises as to whether it is worthwhile, once the individually required minimum old-age income has already been secured. After all, you don’t sit in the cold even in winter, because 40% of the energy put into the oil heating system is lost as exhaust air and the heating system can be operated more efficiently at 12 degrees room air temperature. If you have to suffer in your old age because the precaution was not effective, then you could at least be proud of the fact that you have achieved this with a minimum of effort with a maximum ratio between result and effort, and thus very efficiently.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www. craftsmen news.com
by courtesy of
www.network-karriere.com (published in issue 01/2018, page 30)
by courtesy of
www.innovationundtechnik.de (published in issue 01/2018, pages 38-39)
www.experten.de (published on 08.02.2018)
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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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