{"id":18141,"date":"2008-09-14T08:12:30","date_gmt":"2008-09-14T06:12:30","guid":{"rendered":"https:\/\/fiala.de\/liability-traps-with-the-time-value-account\/"},"modified":"2008-09-14T08:12:30","modified_gmt":"2008-09-14T06:12:30","slug":"liability-traps-with-the-time-value-account","status":"publish","type":"post","link":"https:\/\/www.fiala.de\/en\/liability-traps-with-the-time-value-account\/","title":{"rendered":"Liability traps with the time value account"},"content":{"rendered":"

Time value accounts and the models
\nof partial retirement are paid by the
\nFinancial sales increasingly advertised.
\nThe financial intermediaries
\nit’s mostly about commissions:
\nThe fewest intermediaries
\nknow about the civil and criminal law
\nLiability risks for fiscal
\nConsultants and the management
\nthe employer.
\nIn order to create an implementation channel for the
\ncompany pension scheme
\n…it is not. Rather
\nit’s about a \ufffdgross saving
\n\ufffd of the employee, whereby at any time
\na \ufffdmalfunction\ufffd can occur,
\nwho then receives a payout as a salary
\ntriggers.
\nParticularly important is also the realization,
\nthat during the
\naccumulation phase around aged claims
\nof the employee – only
\nthe due date is postponed:
\nSocial security arises
\nregularly only with complete
\nImplementation of the statutory
\nSpecifications of the working time account model
\nfor once no \ufffdphantom-
\nWage\ufffd with immediate obligation to contribute.
\nMandatory by law
\nis the insolvency protection in \u00a7\u00a7 23<\/a> b,
\n7 d SGB IV for the time value account and
\nin \u00a7 8 a ATG in the case of partial retirement.
\nThis also includes the
\nEmployer’s social security contributions.
\nFrom this, expert authors derive
\nrightly deducts that (also
\npartially) unprotected credit balances
\nto criminal liability under
\n\u00a7 266 a StGB<\/a> lead – not to mention
\nfrom personal liability
\nthe management of the employer
\nfor the levies. In the case of tax
\nAdvisors are then instigators,
\naiding and abetting
\ntouched – not least located
\nhe often finds himself in a position of guarantor
\nin the sense of \u00a7 13 StGB<\/a>.
\nIn practice, the most diverse
\ndesigns of
\nFinancial intermediaries offered. Especially
\nare the
\nPledge and various
\nTrust models for the protection of
\nvalue credits in the event of insolvency.
\nSo comment then
\nalso auditors, that over
\n90 % of the models on the market as
\nare incomplete. For the tax
\nConsultant and the employer
\na disaster, because depending on
\nResponsibility of the parties involved
\nthere is a risk of retroactive interest
\n(with monthly 0.5 or
\n1 %), calculated from the undue
\nunpaid social security contributions.
\nEven renowned insurance companies
\nhold for employers
\nand employees a
\n\ufffdStandard pledge agreement
\n\ufffd ready. This agreement
\nis intended to secure the credit balance – by law
\nit is specified that of these
\nthe amount of gross salary foregone
\nplus the employer’s contribution
\nfor social insurance purposes
\nmust be recorded. However, the
\nPledge always only the
\nNet payment claim of the
\nEmployee in the event of an incident: wage tax
\nand social security are
\nnot covered by this. For understanding
\nimportant is that the lien
\nis accessory, i.e. a
\nrequires a principal claim – and
\nthis exists for the employee only
\nin the amount of the net amount.
\nApart from that, very few people see
\nmodels provide that the employee
\ncontinuously about the amount of his
\nclaims is informed – in the event of insolvency
\nhe can therefore in effect
\nthe pledged property not even proportionally
\nif it exceeds the scope
\nof his claim to payment
\ndemonstrate and substantiate in concrete terms
\ncan.
\nAlready this ineffectual attempt
\nan insolvency insurance
\ncan be for the consultant in the event of damage
\nto surprising reactions
\nof the own pecuniary loss liability insurer
\nlead:
\nBecause the violation of clear
\nLegal norms – including the StGB –
\nshall be deemed to be a knowing breach of duty
\n\ufffd, with which the obligation to compensate of the
\nown pecuniary damage liability insurer
\ngenerally speaking
\nis eliminated.
\nArtist legal design
\nhave been supporting financial sales for years
\nby advertising
\nwith a supposedly bombproof
\nEscrow Solution. Bombproof
\nappears here unfortunately
\nat most the accusation of
\nFraud in the objective facts
\nof \u00a7 263 StGB<\/a>. Finally
\nalso here consultants, employees
\nand employers through full-bodied
\ninsolvency promise
\nmisled in the legal sense. Regrettable
\nis that the people involved
\nTrustees mostly honorary professionals
\nare: In the practice of the criminal courts
\nthese will hardly
\nan error as to a fact or a prohibition
\nwith success.
\nNormally, the insolvency court will
\nimmediately upon receipt
\nof the insolvency petition a prohibition of disposal
\npronounce, \u00a7 21<\/a>
\nInsO. Then the employer may act as
\nDebtor no longer disposes
\nand certainly not by
\nhave a trustee meet. Any
\nnevertheless, injunctions were issued,
\nz. e.g. cash disbursements, would be
\nineffective, \u00a7\u00a7 81 f. InsO<\/a>.
\nLittle talented lawyers in the service
\nmultiple time account provider
\nbelieved that this situation
\ncan be circumvented by the fact that
\nthe reinsurance of the time value account,
\nz. e.g. funds, fixed-term deposits, \ufffdfor the
\nIn the event of insolvency\ufffd on the trustee
\n(as it were as the new owner
\nof the reinsurance) is transferred:
\nHowever, the Reichsgericht has already
\ndecided in the 1930s,
\nthat such arrangements are un-
\nare effective. The Federal Labour Court
\nand the Federal Supreme Court
\nhave adopted this legal view
\nhas long since been confirmed. The trustee
\nthere is therefore hardly any legal
\nPossibility of disposal via
\nValue credits of the employees.
\nThe opening of the insolvency proceedings will
\ndated and recorded by the court
\nheld. Legal consequence is,
\nthat all orders and agency agreements
\n(also
\nof a trustee) at the same moment
\nend, \u00a7\u00a7 115 f. InsO<\/a>.
\nWould a trustee therefore
\nyet dispose of it, he shall act
\nwithout order. Only in passing shall
\nbe advised that
\nno honorary professional in such a
\n– as it were, the business as trustee
\nleading – situation a
\nInsurance cover on the
\nmarket can obtain. The uninsurability
\nis the mirror of a
\nsignificant threat level.
\nRenowned insurance companies
\nfor pecuniary damage liability
\nby honorary professionals
\nindicate that a collision
\nto the discontinuation of the insurance cover
\nwill lead. At
\nTax advisors, it’s in the professional code of conduct,
\nat the lawyer’s also in
\nCriminal Code. For the most part, the
\nTrustee already on behalf of the
\nInitiator or product provider to
\nthe development of a trust solution
\na later order
\nby employers and\/or
\nEmployees would not be
\ncompatible.
\nIn a similar position is
\nof the honorary professions in the CTA model
\n(CTA = Conractual Trust Agreement),
\nof a two-sided escrow,
\nin which employers and employees
\nas principal of
\nAct as trustee. If the employer falls
\ninto insolvency, a
\nInsolvency administrator from the trustee
\n…not to dispose of it,
\nin order to start with
\nwhether there are any counterclaims against
\nthe employees exist – with whom
\nthen be counted up
\ncould (\u00a7 394 BGB<\/a>). If the employee,
\nif necessary also the (formerly managing)
\nAssociates,
\nthen to the trustee
\nnevertheless on payment and settlement
\nthe conflict of interest
\nconcretely to light. For
\nthe criminal liability and a possible
\nNullity of trust agreements
\nhowever, already the abstract
\nHazard.
\nOn the reinsurance of working time accounts
\ncome, for example
\nTime deposits or open-ended investment funds
\nin a deposit of the employer
\nin question. Not infrequently, a
\nDeposit or time deposit account with
\nHouse bank of the employer set up.
\nThe catch of this design
\nis contained in the General Terms and Conditions of Business
\nof the banks to
\nfind: Already with the opening of
\naccounts and deposits, the terms and conditions
\nincluded –
\nand in them it says that first
\nonce the bank or savings bank
\nlien is granted. Has
\nthe employer therefore with the bank
\nany debts, then runs
\nthe subsequent pledge
\nto the employee often economically
\nand legally into the void.
\nThis consideration applies, as practice
\nshows, analogously for the pledge
\nof reinsurance in connection with
\nwith a pension commitment.
\nWith the time value account, too, the
\nIntermediary interested in
\nIncome through corresponding
\nSave product proposals. Will
\nsuch as a life insurance policy as
\ninvestment is chosen, then through
\nthe Zillmerung (a load of the
\nContract with administrative costs in
\nthe first years, of 7 %, and
\nmore of the final amount) of the
\navailable surrender value in the
\nfirst years only to a small extent
\nbe present. Also with the
\nInvestment in open-ended investment funds
\nthe investment risk can be increased due to
\nexchange losses and expenses for the
\nemployers will be noticeable.
\nFew product providers point to
\nthe employer’s default liability
\nmore decisive, however, is the
\nQuestion as to whether the auditor
\nModel later, both from the scope
\nexisting assets as well as
\nof the insolvency protection,
\nnor acknowledged.
\nFor consultants and employers
\nhere the obtaining of a binding
\nInformation according to \u00a7 28 h SGB IV<\/a>
\nin the case of health insurance
\nnot only an option, but
\na duty, as it were, to prevent contrary
\nViews in the event of a subsequent tax audit
\ncounter
\ncan. Dealing with the tax office
\nthe call information is not sufficient
\naccording to \u00a7 42 e EStG<\/a>,
\nbecause this only applies to the phase of
\nWithholding tax on wages
\nwith the employer: Here, if necessary
\nan authoritative answer
\nobtained under the tax code
\nwill be.
\nHardly offered by intermediaries
\nthe bail bond insurance will be
\nGuarantee: In this case, the guarantee
\na financial intermediary is primarily
\ntowards the employee,
\nincluding the discharge
\nany social security contributions, and
\nTaxes. For the employer
\nthis is an effective instrument of
\ninternal financing, because only
\naround 20 to 30 % of the total credit balance
\nmust be collateralised depending on creditworthiness
\nwill be. The costs of the
\nGuarantees usually amount to
\nto between 1,5 % and 2 % per annum
\nGuarantee commission: For the
\nEntrepreneur resembles the model
\nthen a lump-sum
\nUnterst\u00fctzungskasse (U-Kasse),
\nbut often at significantly lower prices
\nConditions. The commission
\nof the intermediary is around 10 % of the
\nGuarantee commission – this is so
\nlittle that few intermediaries
\nwould like to deal with it.
\nFor the company pension plan
\nManagement Consultant
\nor the fee-based advisor, this
\nProduct suitable for customer loyalty.
\nBut beware, on the market
\nthere are also guarantee models
\nwith trustees – and it is precisely these
\ncan be for the financial service provider
\nlargest risks, always included
\nan invitation by
\nProsecutor and Criminal Court.
\nWhile some product providers misleadingly
\nwith \ufffdtime account coverage
\nadvertise with guarantee\ufffd,
\nexperts know that despite the \ufffdguaranteed interest rate
\nand profit participation\ufffd
\na considerable margin risk
\nof the employer remains. The
\nlegal loopholes and issues
\nfor insolvency protection force the
\ntax advisors according to constant
\nappellate jurisdiction
\nfor delegation to legal counsel.
\nThe tax or economic
\nConsultant also owes
\nin this respect the client
\nas well as an unsolicited clarification,
\nas any insurance broker
\nthe employer his
\nto show liability (including criminal liability)
\nhas. For the shareholder
\nManaging Director is the situation
\nprecarious, because here the managerial liability
\noften comes into play: This
\nrequires particularly careful design,
\nbut also without orientation
\nat the commission interest.
\nThose who are involved in deferred compensation
\nor time value account, should
\n…to realize that we’re talking about funds…
\nof the employees, i.e. their
\n\ufffdearned\ufffd property, the wages.
\nWho here as an employer
\n\ufffdPath of implementation and the tariff\ufffd
\ndetermined (as employer or intermediary),
\ndeals, as it were
\nas a trustee with other people’s assets.
\nThis through commissions
\nand administrative costs,
\nmay terminate all contracts of the
\n(Partial) Invalidity. Exciting
\n…is that it doesn’t involve…
\nonly the contracts with the employee
\ncan be affected,
\nbut also all investment contracts:
\nFinally, it is regularly
\na bundle of contracts,
\nin which each other
\nis referred to. The real fee consultant
\ncan help these problems
\neasier to dodge.
\n(35422)<\/p>\n

(ew of 31.07.2006)<\/p>\n

Courtesy of www.vwew.de<\/a><\/LINK>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":"","rank_math_focus_keyword":"","rank_math_description":"","rank_math_title":""},"categories":[492],"tags":[602,568,575,552,533,505,488,516,509,497,567,501,500,723],"class_list":["post-18141","post","type-post","status-publish","format-standard","hentry","category-veroeffentlichungen-en","tag-schadensfall-en","tag-entgeltumwandlung-en","tag-ehrenberuflern-en","tag-bundesgerichtshof-en","tag-garantiezins-en","tag-insolvency","tag-haftung-en","tag-life-insurance","tag-pensionszusage-en","tag-altersversorgung-en","tag-sozialversicherung-en","tag-support-fund","tag-zeitwertkonten-en","tag-zillmerization"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts\/18141","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/comments?post=18141"}],"version-history":[{"count":0,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts\/18141\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/media?parent=18141"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/categories?post=18141"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/tags?post=18141"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}