Liability traps with the time value account

Time value accounts and the models
of partial retirement are paid by the
Financial sales increasingly advertised.
The financial intermediaries
it’s mostly about commissions:
The fewest intermediaries
know about the civil and criminal law
Liability risks for fiscal
Consultants and the management
the employer.
In order to create an implementation channel for the
company pension scheme
…it is not. Rather
it’s about a �gross saving
� of the employee, whereby at any time
a �malfunction� can occur,
who then receives a payout as a salary
triggers.
Particularly important is also the realization,
that during the
accumulation phase around aged claims
of the employee – only
the due date is postponed:
Social security arises
regularly only with complete
Implementation of the statutory
Specifications of the working time account model
for once no �phantom-
Wage� with immediate obligation to contribute.
Mandatory by law
is the insolvency protection in §§ 23 b,
7 d SGB IV for the time value account and
in § 8 a ATG in the case of partial retirement.
This also includes the
Employer’s social security contributions.
From this, expert authors derive
rightly deducts that (also
partially) unprotected credit balances
to criminal liability under
§ 266 a StGB lead – not to mention
from personal liability
the management of the employer
for the levies. In the case of tax
Advisors are then instigators,
aiding and abetting
touched – not least located
he often finds himself in a position of guarantor
in the sense of § 13 StGB.
In practice, the most diverse
designs of
Financial intermediaries offered. Especially
are the
Pledge and various
Trust models for the protection of
value credits in the event of insolvency.
So comment then
also auditors, that over
90 % of the models on the market as
are incomplete. For the tax
Consultant and the employer
a disaster, because depending on
Responsibility of the parties involved
there is a risk of retroactive interest
(with monthly 0.5 or
1 %), calculated from the undue
unpaid social security contributions.
Even renowned insurance companies
hold for employers
and employees a
�Standard pledge agreement
� ready. This agreement
is intended to secure the credit balance – by law
it is specified that of these
the amount of gross salary foregone
plus the employer’s contribution
for social insurance purposes
must be recorded. However, the
Pledge always only the
Net payment claim of the
Employee in the event of an incident: wage tax
and social security are
not covered by this. For understanding
important is that the lien
is accessory, i.e. a
requires a principal claim – and
this exists for the employee only
in the amount of the net amount.
Apart from that, very few people see
models provide that the employee
continuously about the amount of his
claims is informed – in the event of insolvency
he can therefore in effect
the pledged property not even proportionally
if it exceeds the scope
of his claim to payment
demonstrate and substantiate in concrete terms
can.
Already this ineffectual attempt
an insolvency insurance
can be for the consultant in the event of damage
to surprising reactions
of the own pecuniary loss liability insurer
lead:
Because the violation of clear
Legal norms – including the StGB –
shall be deemed to be a knowing breach of duty
�, with which the obligation to compensate of the
own pecuniary damage liability insurer
generally speaking
is eliminated.
Artist legal design
have been supporting financial sales for years
by advertising
with a supposedly bombproof
Escrow Solution. Bombproof
appears here unfortunately
at most the accusation of
Fraud in the objective facts
of § 263 StGB. Finally
also here consultants, employees
and employers through full-bodied
insolvency promise
misled in the legal sense. Regrettable
is that the people involved
Trustees mostly honorary professionals
are: In the practice of the criminal courts
these will hardly
an error as to a fact or a prohibition
with success.
Normally, the insolvency court will
immediately upon receipt
of the insolvency petition a prohibition of disposal
pronounce, § 21
InsO. Then the employer may act as
Debtor no longer disposes
and certainly not by
have a trustee meet. Any
nevertheless, injunctions were issued,
z. e.g. cash disbursements, would be
ineffective, §§ 81 f. InsO.
Little talented lawyers in the service
multiple time account provider
believed that this situation
can be circumvented by the fact that
the reinsurance of the time value account,
z. e.g. funds, fixed-term deposits, �for the
In the event of insolvency� on the trustee
(as it were as the new owner
of the reinsurance) is transferred:
However, the Reichsgericht has already
decided in the 1930s,
that such arrangements are un-
are effective. The Federal Labour Court
and the Federal Supreme Court
have adopted this legal view
has long since been confirmed. The trustee
there is therefore hardly any legal
Possibility of disposal via
Value credits of the employees.
The opening of the insolvency proceedings will
dated and recorded by the court
held. Legal consequence is,
that all orders and agency agreements
(also
of a trustee) at the same moment
end, §§ 115 f. InsO.
Would a trustee therefore
yet dispose of it, he shall act
without order. Only in passing shall
be advised that
no honorary professional in such a
– as it were, the business as trustee
leading – situation a
Insurance cover on the
market can obtain. The uninsurability
is the mirror of a
significant threat level.
Renowned insurance companies
for pecuniary damage liability
by honorary professionals
indicate that a collision
to the discontinuation of the insurance cover
will lead. At
Tax advisors, it’s in the professional code of conduct,
at the lawyer’s also in
Criminal Code. For the most part, the
Trustee already on behalf of the
Initiator or product provider to
the development of a trust solution
a later order
by employers and/or
Employees would not be
compatible.
In a similar position is
of the honorary professions in the CTA model
(CTA = Conractual Trust Agreement),
of a two-sided escrow,
in which employers and employees
as principal of
Act as trustee. If the employer falls
into insolvency, a
Insolvency administrator from the trustee
…not to dispose of it,
in order to start with
whether there are any counterclaims against
the employees exist – with whom
then be counted up
could (§ 394 BGB). If the employee,
if necessary also the (formerly managing)
Associates,
then to the trustee
nevertheless on payment and settlement
the conflict of interest
concretely to light. For
the criminal liability and a possible
Nullity of trust agreements
however, already the abstract
Hazard.
On the reinsurance of working time accounts
come, for example
Time deposits or open-ended investment funds
in a deposit of the employer
in question. Not infrequently, a
Deposit or time deposit account with
House bank of the employer set up.
The catch of this design
is contained in the General Terms and Conditions of Business
of the banks to
find: Already with the opening of
accounts and deposits, the terms and conditions
included –
and in them it says that first
once the bank or savings bank
lien is granted. Has
the employer therefore with the bank
any debts, then runs
the subsequent pledge
to the employee often economically
and legally into the void.
This consideration applies, as practice
shows, analogously for the pledge
of reinsurance in connection with
with a pension commitment.
With the time value account, too, the
Intermediary interested in
Income through corresponding
Save product proposals. Will
such as a life insurance policy as
investment is chosen, then through
the Zillmerung (a load of the
Contract with administrative costs in
the first years, of 7 %, and
more of the final amount) of the
available surrender value in the
first years only to a small extent
be present. Also with the
Investment in open-ended investment funds
the investment risk can be increased due to
exchange losses and expenses for the
employers will be noticeable.
Few product providers point to
the employer’s default liability
more decisive, however, is the
Question as to whether the auditor
Model later, both from the scope
existing assets as well as
of the insolvency protection,
nor acknowledged.
For consultants and employers
here the obtaining of a binding
Information according to § 28 h SGB IV
in the case of health insurance
not only an option, but
a duty, as it were, to prevent contrary
Views in the event of a subsequent tax audit
counter
can. Dealing with the tax office
the call information is not sufficient
according to § 42 e EStG,
because this only applies to the phase of
Withholding tax on wages
with the employer: Here, if necessary
an authoritative answer
obtained under the tax code
will be.
Hardly offered by intermediaries
the bail bond insurance will be
Guarantee: In this case, the guarantee
a financial intermediary is primarily
towards the employee,
including the discharge
any social security contributions, and
Taxes. For the employer
this is an effective instrument of
internal financing, because only
around 20 to 30 % of the total credit balance
must be collateralised depending on creditworthiness
will be. The costs of the
Guarantees usually amount to
to between 1,5 % and 2 % per annum
Guarantee commission: For the
Entrepreneur resembles the model
then a lump-sum
Unterstützungskasse (U-Kasse),
but often at significantly lower prices
Conditions. The commission
of the intermediary is around 10 % of the
Guarantee commission – this is so
little that few intermediaries
would like to deal with it.
For the company pension plan
Management Consultant
or the fee-based advisor, this
Product suitable for customer loyalty.
But beware, on the market
there are also guarantee models
with trustees – and it is precisely these
can be for the financial service provider
largest risks, always included
an invitation by
Prosecutor and Criminal Court.
While some product providers misleadingly
with �time account coverage
advertise with guarantee�,
experts know that despite the �guaranteed interest rate
and profit participation�
a considerable margin risk
of the employer remains. The
legal loopholes and issues
for insolvency protection force the
tax advisors according to constant
appellate jurisdiction
for delegation to legal counsel.
The tax or economic
Consultant also owes
in this respect the client
as well as an unsolicited clarification,
as any insurance broker
the employer his
to show liability (including criminal liability)
has. For the shareholder
Managing Director is the situation
precarious, because here the managerial liability
often comes into play: This
requires particularly careful design,
but also without orientation
at the commission interest.
Those who are involved in deferred compensation
or time value account, should
…to realize that we’re talking about funds…
of the employees, i.e. their
�earned� property, the wages.
Who here as an employer
�Path of implementation and the tariff�
determined (as employer or intermediary),
deals, as it were
as a trustee with other people’s assets.
This through commissions
and administrative costs,
may terminate all contracts of the
(Partial) Invalidity. Exciting
…is that it doesn’t involve…
only the contracts with the employee
can be affected,
but also all investment contracts:
Finally, it is regularly
a bundle of contracts,
in which each other
is referred to. The real fee consultant
can help these problems
easier to dodge.
(35422)

(ew of 31.07.2006)

Courtesy ofwww.vwew.de.

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

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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