The split subscription right: The insurers’ solution for small and medium-sized …

Mr. C., an insurance broker, appears and presents the following model to the entrepreneur:

You won’t get any more money from the bank – from me you will get an infinite amount of liquidity, and this without any credit security. Your bank will also be thrilled, because gone is the state of high costs due to overdrafts.

 

The solution is quite simple, says the broker:

According to § 1 b of the German Company Pension Act (BetrAVG), you can buy a direct insurance policy with, for example, a one-off contribution of € 10,000. In the case of the (split) subscription right, you provide 20% employer-financed for your employee (this is the insurance company’s guarantee) – and 80% for yourself (this is financed from “surpluses”).

 

This brokerage solution confuses even experts:

Obviously a smokescreen, because in reality, in such a case, the subscription right to the insurance guarantee benefit, which is revocable from the outset, must be provided for 100% for the employee – with regard to the uncertain future insurance surpluses and the death risk, the subscription right will lie with the employer. Thus you get – so the further sales consideration of the broker – by the deduction of the costs 40% from the tax office again, because you set off the 10,000 € from the tax – thus approximately 4,000 € tax refund for the entrepreneur. In addition, you immediately receive € 8,000 from the insurer as a policy loan at a favourable interest rate of 6% p.a.. (after taxes, this means an interest rate of around 3.6%). In the end, you as an entrepreneur have received €2,000 without loan collateral and that too tax-free on balance.

I can solve all your financial problems with it, says the insurance broker from the Bavarian foothills of the Alps. He, the broker, has been working only like this for more than 10 years – and with it he makes every entrepreneur “happy”, he says. At this 3.6%, insurance financing is cheaper than any overdraft facility at a local bank. Insurers are simply better financiers – and insurance companies would have been successful with this model for about 25 years. But what are the catches?

The tax-saving trick:

The big end doesn’t come at the end
The milkmaid calculation starts with the fact that the alleged 3.6% net (the entrepreneur has to pay 6% in total first) refers to the entire €8,000 policy loan. For 2,000 € liquidity, the entrepreneur first pays 24% interest (because this is 6% related to 8,000 € policy loan, so 24% related to the liquidity gained). Even “after taxes”, this means that almost every bank loan ends up being cheaper than this “bargain” from the insurance industry.

The second deception lies in the fact that the intermediary refers to the tax exemption of the maturity benefit of the life insurance in the occupational pension scheme. But in this case, the company is the insurance customer, and thus all recoveries (on expiry or early termination) are taxable as part of the company’s profits. Strictly speaking, the AG must constantly pay tax on the annual surpluses and capitalize the asset value of the accumulated surpluses on the balance sheet. As a result of the interest payments and the balance of the tax effect, so much liquidity flows out again each year that after just six years the liquidity advantage has turned into an equally increasing disadvantage. The €2,000 liquidity advantage in the first year accumulates to well over €10,000 liquidity disadvantage in the last third of the contract term.

The broker points to a “favourable” 90% surrender value from the start of the insurance, and therefore the employer could easily terminate this insurance contract at any time – for example after 5 years – or repay the policy loan. The only catch to this consideration is that the employee is entitled to 100% of the guaranteed benefits – unless he leaves the employer’s company before vesting. It will hardly be possible to repay the policy loan from the surpluses alone after a few years of policy term – the entrepreneur will be left with residual debts, not to mention the liquidity disadvantage accumulated by then. If, after e.g. 20 years, he could still repay the policy loan in full from the surpluses, his loss from the accumulated liquidity disadvantage has already increased to over € 6,000.

In any case, the employer will have to pay full tax on the payment of the insurance – in particular already annually the current surpluses and at the end still the final surpluses and participation in the valuation reserves – as operating income. This is the other side of the coin, since the employer had also deducted the insurance contribution. If one balances the estimated 40% tax burden, which accrue for the entrepreneur in the case of the – allegedly at any time possible – repayment, then the “flexible exit” from this construct becomes economically a loss-making business even after more than 10 years of contract duration, above all in comparison to the usual bank financing with good collateral.

With usual total interest of the insurance it remains in the end mostly a loss business – only with above average interest a small profit remains. Measured against the interim annual outflow of liquidity and initial liquidity advantage, however, this most favourable case also corresponds to a return of only around 1% per annum. As an entrepreneur, you can hardly refinance yourself more expensively. This model should make a real contribution to boosting confidence in the sector.

Sales lies of the broker

The flexibility of this model has limits, because the SME loses a lot of money in any case – either because the surrender value minus the commitment to the employee is not enough to repay the policy loan plus taxes, or because the annual interest is enormously expensive, or because after a few years liquidity increasingly flows out because of the taxation of the annual surpluses. The winner is the insurer, because it cannot easily get a 6% interest rate on the market – unless it invests in “toxic assets” that have not yet found a “bad bank”: Of course, that would be a financial bet and not a security with the financial house. Of course, the broker hopes the bombshell won’t burst until his broker liability is time-barred. Meanwhile – i.e. for the next 10 years – the intermediary wishes that the entrepreneur and his tax advisor “don’t smell a rat”, because at first glance this model seems to be a bargain “in this financial crisis”. It takes tax and actuarial expertise to really look through such a model.

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

by courtesy of

www.handwerke.de (published in Computern im Handwerk 09/2009, page 6-8)

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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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