Contribution notices of the statutory health insurance for supplementary benefits: What you have to pay attention to in order to keep the overview
The current ruling of the Social Court of Dortmund of 22.01.2014 (Ref. S 39 KR 1585/13) led to the reimbursement of all additional contributions to the GKV levied by way of a contribution notice. The court criticized the functioning of the GKV: “According to the contents of the administrative file before the court, the defendant [GKV] did not provide any factual clarification at all here on the question of whether the lump-sum payment made to the plaintiff was the result of an occupational pension contract within the meaning of § 229 para. 1 sentence 1 no. 5 of the Fifth Book of the Social Code (SGB V).”
Freely invented reference to working life
The Social Court criticised the treatment of the payment of a life insurance policy as an occupational pension because no reference to the plaintiff’s earlier working life was discernible, as “fictitious” on the face of it. The GKV should first have fully investigated the correct facts by obtaining information from the insurer and, if necessary, also by investigating the former employer. Thus it happens that in individual cases the insurer needs months or years to provide the data in the case of private continuation without full compulsory insurance in the payout phase of a life insurance policy.
Contribution notices based solely on information provided by the insurer are illegal
The GKV regularly makes it too easy for itself when, in the case of a lump-sum payment or pension from a direct insurance policy, it simply follows the corresponding notification from the paying agent (i.e. usually the insurer) as to whether there is a duty to pay contributions to the statutory health and long-term care insurance. This procedure is illegal because the notification can only be a reason for the GKV to examine, by way of official investigation, whether and to what extent there is a connection to the former working life that leads to the obligation to pay contributions. The SHI is also obliged to carry out this official investigation and may not simply rely on the information provided by the paying agent. Many contribution notices have also proved to be incorrect in court.
The required examination can be complex and may include, for example, a review of insurance documents, employment contracts, agreements with the employer from earlier periods, as well as any amendments and ancillary agreements from the entire term of the contract.
If the GKV does not carry out these checks and only abandons the contribution notice on the basis of the notification from the paying agency that there is an occupational pension scheme that is liable for contributions, this notice must be annulled for this reason, either in response to the insured person’s objection in the objection procedure, or at the latest by the social court. The latter will not even examine the complete facts of the case – in the end, objectively existing contribution claims of the health insurance fund may simply be time-barred.
Duty of the insurer and the employer to establish the facts of the case
Employers and insurers may have to clarify the facts decades after the end of the employment contract. The belief that, as an employer, you have got rid of all expenses to the insurer after paying the contribution can thus prove to be a mistake. In addition, the employer’s documents may have been destroyed due to the alleged expiry of retention periods (a typical error) or may be untraceable (e.g. after the employer’s insolvency), which makes it difficult to clarify the facts – possibly a source of liability for the employer or an insolvency administrator who has not ensured further safekeeping. This can also lead to liability for damages for the insurer who has given an unchecked assessment of the obligation to pay contributions to the GKV without precise knowledge of the facts.
In many cases the best chances for provisional or permanent exemption from GKV contributions
In any case, a good chance to finally eliminate such contribution notices solely with the argument of the lack of factual clarification or at least not to let them become effective for the time being, with the hope that it remains so, e.g. due to the lack of clarification possibility or due to the statute of limitations.
This applies not only to lump-sum payments from direct insurance policies, but also to pension payments and lump-sum settlements from pension insurance policies.
In particular, cases are also affected where the pension option is chosen for the direct insurance, or where it is a question from the outset of a pension insurance (also for occupational disability pensions) which is paid as an annuity, or for which a lump-sum settlement is chosen. Here, too, it could be disputed whether this is a question of occupational pensions or otherwise a relevant connection with the former dependent employment.
One also thinks here of the cases of group insurance, where the employer merely deducts the premiums from the salary and transfers them collectively, perhaps even being the policyholder. Incidentally, accident insurance could also be affected, but this is certainly less common and even less likely to result in a contribution notice from the GKV.
Voluntary GKV insurance with extended obligation to pay contributions
Around 5% of those insured under the statutory health insurance scheme are voluntarily insured in old age because, for example, they do not have the required periods of prior insurance for compulsory health insurance for pensioners (KVdR) or do not even receive a pension from the German Federal Pension Insurance Scheme.
Unlike, for example, in the KVdR, where direct insurances of the company pension scheme, insofar as they are based on own contribution payments, cannot be used for the assessment of the contributions, because there only employment-related pension payments are taken into account (Rhineland-Palatinate Regional Social Court, judgements of 07.11.2013, ref. L 5 KR 65/13 and L 5 KR 5/13), this does not apply to the voluntary statutory health insurance, because this is based on all old-age income for the measurement of contributions.
But: A one-off payment – e.g. also a lump-sum payment of an annuity – from a private insurance would not be subject to contributions. If an amount is invested in an annuity insurance policy (or if an annuity is chosen instead of a lump-sum settlement), however, the entire annuity is subject to contributions for the voluntarily insured person, i.e. both the interest portion (income portion) and the consumption of the capital.
In the case of investment (e.g. also the capital settlement of a private insurance) in other assets, e.g. a payout plan at a bank, however, only the income (e.g. interest) is to be contributed, not, however, as in the case of a pension, also the consumption of capital, although this also serves the maintenance.
If the payment of the direct insurance is subject to contributions and the capital is then invested at interest, the interest from this is also subject to contributions for the voluntarily insured person.
Savings only with timely design
Numerous contributors shape the circumstances without prior orientation, only to find out afterwards that there would have been legally more favourable alternatives. It is often unknown that private pension insurance policies are only taxed at the rate of return (e.g. 17% when drawn from the age of 67) – occupational pension schemes, however, are taxed at up to 100%. This can be optimised by splitting into a payout plan with a bank up to age 80 and only then taking out an annuity insurance from e.g. age 81, because then the income share is even only 7%. It will often take an expert actuarial opinion to identify and evaluate the alternatives.
The Federal Social Court has already ruled in its judgment of 27.01.2010 (Case No. B 12 KR 28/08 R) that health and long-term care insurance contributions must still be paid by voluntarily insured persons even in the case of lump-sum settlements from private pension insurance policies – but not in the case of one-off payouts from endowment insurance policies. Many life insurances free of contribution so far there were converted on advice of mediators into pension insurances, in order to attain a hoped for seizing and Hartz IV security – this proves later often as expensive mistake.
Only subsequently – for example, by choosing a lump-sum settlement instead of a pension – can the exemption from contributions then no longer be arranged, and also a more favourable compulsory insurance in the KVdR can only be arranged in exceptional cases, for example by paying missing contributions for a minimum pension of the Deutsche Rentenversicherung Bund.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
April 2015 issue
Under the headline: Incorrect statutory health insurance contribution notices in supplementary pension schemes.
www.haymarket.de (TASPO No. 25 of 19.06. 2015 under the headline: Incorrect GKV contribution notices for supplementary pensions)
“Der Koment, Fachzeitung für Schausteller und Marktkaufleute” (published on 20.03.2015 under the headline: False contribution notices of the statutory health insurance (GKV) in the case of supplementary pensions).
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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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