A new letter of the Federal Minister of Finance clarifies that saved Rürup capital cannot be withdrawn from the access of creditors. This results in a fundamentally new discussion situation with the insurance providers. Red.
The fact that not only saved assets in a Rürup pension can be seized, but also the non-state-subsidised part of the Riester credit balance, had already been decided in a ruling of 3 November 2006 by the Mainz Regional Labour Court (Ref.: 3 Sa 414/06) for the case of a certified Riester mini-pension in the savings phase.
The state subsidy regularly relates to only four percent of gross income, which in real terms should correspond to a pension of around six percent of gross income – too little to live on and too much to die on. No unseizability The Rürup pension or the so-called seizure-protected old-age provision for self-employed persons requires a contractual prohibition of assignment and transfer. Insurers and distributors never tired of deriving unseizability from this prohibition. But now the BMF clarifies:
“The attachment of … A contractual prohibition of assignment and transfer does not prevent the attachment of the pension assets.”
Accordingly, the Federal Court of Justice (BGH) had already ruled (decision of 25 August 2004 (ref.: IX a ZB 271/03) that even a provision in the articles of association of a pension scheme on non-transferability does not preclude attachability.
Attachment of private pension assets
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. As property, a creditor’s claim enjoys the protection of the Basic Law – it may not be withdrawn from him as easily by contractual prohibitions on transfer as the insurers would have liked to imagine.
The “Rürup lie” of the insurers was justified with the fact that contractually an exploitation exclusion would be agreed upon and the transferability would be excluded. But such contractual exclusions do not save from the seizure, because ” constitutional creditor protection (the state may protect constitutionally only the social minimum before the creditor) is priority “, as the BMF stressed now again.
Saving for the state and creditors
Also the tax office probably does not like to see how the self-employed (freelancer and tradesman) can get rid of a generous pension and owe his taxes.
This means that the Rürup saver also saves for the state (because of the saving of later support) and, incidentally, for his creditors (possibly also the tax office). According to the Code of Civil Procedure (ZPO), courts will only allow the subsistence level to be exempt from seizure in order to relieve the social welfare office, because the debtor should not be able to get out of debt at the expense of the general public.
Insurers ignore clear legal situation
The seizure-free limits in the savings phase – and later after the start of the pension – are set at a correspondingly lower level in the law on seizure-free old-age provision for self-employed persons. These are nowhere near the maximum limits up to which Rürup contributions can be taken into account as special expenses on a pro rata basis (20,000 to 40,000 euros a year), so that a large part of the Rürup assets saved up remain subject to seizure.
Since the legislator provides (expressly by law) for the attachment of the saved capital above the exemption limits, one has to admire the courage of insurers and distributors who think they are 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.
Question of the surrender value
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 to the seizing-protected age precaution of independent ones (§ 851c ZPO) results that the accumulated Rürup capital can be seized before beginning of pension above the welfare assistance-conformal borders. Insolvency administrators, the tax office and other creditors will know how to enforce these claims, which are clearly left to them by law, against the insurers – the Rürup saver will only be left with a pension at social welfare level,
Is to be checked constellation-related
It is therefore also not true what the insurers claim in the alternative that there is no surrender value at all with the Rürup pension. 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 is agreed at the time of termination.
However, it is nevertheless present in the savings period, because it is used to calculate the non-contributory pension as “premium-free insurance”. However, the surrender value must then actually be paid out in the event of withdrawal or rescission, as well as in the event of extraordinary termination in accordance with § 314 BGB (for example, because the employment agency does not provide benefits in accordance with ALG II or Harz IV due to the crediting of the saved assets) and also – in accordance with § 851c ZPO – in the event of seizure. 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.
Corresponding insurers take advantage of this in their advertising by soliciting customers in Germany with “insurance secrecy and bankruptcy protection”. On closer examination, this too turns out to be a distribution lie in 99.9 percent 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.
Practical approach: professional asset protection There are also possibilities – without any tax fraud – to protect one’s own assets, for example through foundations. However, these are not off-the-shelf products, as some Swiss banks have offered their clients for the purpose of aiding and abetting money laundering.
(Editor’s note: In this context, we would like to remind you of the presentation in the 06/2010 issue of V&S on foundations in Germany, Switzerland and Austria).
by Dr. Johannes Fiala and Dipl-Math. Peter A. Schramm
by courtesy of
www.kreditwesen.de (published in Assets & Taxes, Aug 08/2010, pages 36-37).
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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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