by Johannes Fiala, Lawyer (Munich), M.B.A. (Univ.Wales), M.M. (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Banker (fiala4instalive.instawp.xyz )
Pension commitment only has to be signed by the obligor In the case of a pension commitment, the written agreements are usually signed by the employer and a copy is then sent to the beneficiary employees. A reinsurance policy is then taken out and the resulting claims are pledged. Red card from the tax office In this procedure, which is common in practice, both the tax office and the tax court regularly rejected the formation of a provision because the employee’s signature was missing. The signature of the employee is supposed to be a necessary condition for a written pension commitment in the sense of § 6a Abs.1 Nr. 3 EStG. Green light from the Federal Fiscal Court (BFH) The BFH has now decided (BFH 27.4.05, I R 75/04, DB 05, 1940, DStR 05, 1524 and 8.12.04, I B 125/04, BFH/NV 05, 1036) that the written form requirement is already met if the pension obligor/employer issues a written statement with the required content and the employee accepts this offer verbally. This is because the law only requires a written grant, not a written pension agreement. In the case of the judgement, the acceptance of the pension commitment was fulfilled by the fact that the employees had agreed to the pledging of the reinsurance claims. Practical tip: In its ruling of 8 December 2004, the BFH had already decided that a written pension commitment can exist even if not all of the agreed points are set down in writing. According to R 41, para. 7 EStR, any written stipulation from which the type and amount of the pension entitlement results, e.g. in the form of an overall commitment or a collective agreement, can be considered for the prescribed written form. In the case of an overall commitment to the workforce, it is sufficient if the relevant criteria are posted on the company notice board. Advice by the intermediary Intermediaries of financial services are usually allowed to give legal advice to the employer (as a so-called auxiliary business). The tax adviser is not usually allowed to do this ? nor is he insured to do so. This opens up the opportunity for the intermediary to determine, by means of a “quick check service”, whether the often very old structure is still up-to-date, watertight and secure.