Does society favor entrepreneurs or employees

Shareholder-managing director

Table of Contents

1 Conceptual clarification / distinction
1.1 Preliminary definition of the shareholder-manager
1.2 The main tax consequences
1.3 Obligation to pay social security and protective provisions under labor law
1.3.1 Applicability of labor law?
1.3.2 Social security obligation?
2 The legal status of the controlling partner
3 The prerequisites for the offense in detail
3.1 The "controlling partner"
3.2 The clear (advance) agreement
3.3 Royalty Regulations
3.4 Pension Agreements
3.4.1 Principles
3.4.2 Further decisions
3.4.3 Waiver of pension entitlement
3.4.4 Assumption of a pension commitment against a replacement payment
4 Other (direct insurance)
5 Bibliography
6 Related Lexicon Articles

1. Conceptual clarification / distinction

1.1. Advance definition of the managing director

Every corporation needs an executive body that leads the company internally and represents it externally. In the case of the GmbH, this body is called the "managing director" (§§ 35 ff. GmbHG) and in the case of the AG "executive board" (§§ 76 ff. AktG). While the managing director (GmbH) is subject to the instructions of the shareholders' meeting, the board of directors (AG) can pursue its business without restrictions. Under company law - unlike in → partnerships - the principle of external unity applies. According to this, the managing director does not have to be a partner at the same time. However, he can dominate the corporation (→ controlling shareholder) if he - in personal identity - is a partner and managing director.

In tax law there are therefore separate regulations for the managing director of a GmbH (main application) if he is at the same time controlling partner is. This is always the case with a one-man GmbH if the sole shareholder is also the managing director. However, the regulations on the controlling shareholder can also apply regardless of the personal identity of the managing director and shareholder, if, for example, the shareholder has the majority of the shares.

1.2. The main tax consequences

For the shareholder-managing director the general Rules for the exchange of services between the corporation and the shareholder, who must comply with the → arm's length comparison. If this is not the case, there is a hidden profit distribution (vGA, → hidden profit distribution). The use cases relate to all components of the managing director's remuneration; s.a. → Managing Director salary. The following are specifically affected:

  • Salary,

  • Royalty agreements,

  • Pension schemes and

  • all other components of the employment contract, which - in addition to the appointment of an organ - must be concluded.

Comes (as so often) the additional The legal figure of the "controlling partner" is also listed under 2 and 3 below Special right to be observed.

In general, the following applies to managing director salaries in tax law:

Employer contributions to health, pension and unemployment insurance for controlling shareholder-managing directors are not tax-free according to § 3 No. 62 EStG. In the case of a controlling shareholder-managing director, there is no employment relationship under labor law, so that the employer is not legally obliged to pay employer shares. Whether it is a controlling shareholder-managing director who is not subject to social security contributions or a dependent ArbN is judged solely according to social security regulations.

If the corporation pays its shareholder-managing director separate remuneration for the performance of overtime, Sunday, public holiday or night work, from a tax point of view this is usually a → hidden profit distribution (vGA; see BFH of March 27, 2012, VIII R 27/09, BFH / NV 2012, 1127, LEXinform 0179864). The compensation that the shareholder-managing director who sells his GmbH shares receives for waiving his pension claims against the GmbH can be compensation within the meaning of Section 24 No. 1 letter a EStG. In individual cases, consulting activities following the management activity cannot be regarded as a continuation of the original employment relationship (BFH judgment of April 10, 2003, XI R 4/02, BStBl II 2003, 748).

In terms of sales tax law, a → service against payment is usually also available if a managing director acts against reimbursement of expenses (BFH judgment of April 11, 2002, V R 65/00, BStBl II 2002, 782). With the judgment of March 10, 2005 (VR 29/03, BStBl II 2005, 730), the BFH has expressly changed its case on the → exchange of services under VAT law between a corporation and its managing director (see on partnerships: BFH judgment of June 6, 2002, VR 43/01, BStBl II 2003, 36; on the application of the BFH judgment see BMF of May 31, 2007, BStBl I 2007, 503, according to which the regulations of the BFH judgment are to be applied to services performed after March 31, 2004).

According to this, the management services of a GmbH managing director can in individual cases be viewed as independent services within the meaning of Section 2 (2) No. 1 UStG. The position of the GmbH managing director as an organ does not stand in the way of this. The ECJ recently denied the entrepreneurial status of a sole shareholder-manager who is subordinate to the company and bears no economic risk (ECJ judgment of October 18, 2007, case C-355/06, UR 2007, 889). In accordance with the German legal opinion, the ECJ also emphasizes the need to consider individual cases in order to assess the independence and consequently the entrepreneurial status of a GmbH manager.

Note:

By correspondingly free contractual structuring of the activities of the managing director, it is possible for the managing director to become self-employed and thus become an entrepreneur.

Sales taxable management and representation services of the shareholders to a partnership exist if the services are performed for (special) remuneration and are therefore aimed at an → exchange of services. It must not be a matter of services that are compensated as a shareholder contribution through participation in the company's profit and loss.

1.3. Compulsory social security and labor law protection regulations

1.3.1. Applicability of labor law?

According to H.M., GmbH managing directors are not a (typical) ArbN. While §§ 611 ff. BGB are generally applicable to the employment contract (BAG of February 21, 1994, NJW 1995, 675), the same applies to labor protection regulations different.

For the validity of the protective regulations under labor law, it depends on the individual case whether the respective individual protective regulation can then be applied to the respective managing director.

  • Section 5 (2) No. 1 BetrVerfG expressly states that the managing director of a GmbH, who is appointed as a statutory body to represent the KapG, is not an ArbN within the meaning of the BetrVerfG.

  • Since the managing director is also not a senior employee within the meaning of Section 5 (3) BetrVerfG, he cannot invoke the rights of senior executives ("speaker committee").

  • The Dismissal Protection Act contains a comparable regulation in § 14 KSchG, so that the protection area of ​​the KSchG remains denied to the managing director.

  • There is an identical regulation for the labor court procedure. Section 5 (1) sentence 3 ArbGG and Section 3 (1) sentence 2 MitBestG exclude the GmbH managing director from this group, so that the managing director can only sue for his rights in the ordinary courts.

1.3.2. Compulsory social security?

Shareholder-managing directors of a GmbH can on the one hand have a dependent employment relationship with the GmbH that is subject to social insurance contributions or, on the other hand, can be self-employed and thus not be subject to statutory social insurance obligations. Whether a partner-managing director is subject to compulsory social security and therefore has to pay contributions to health, long-term care, unemployment and pension insurance is a question that is not easy to answer. An overview of the most important principles for the assessment of managing directors under social security law is given in Annex 3 of the joint circular of the top social security organizations of July 5, 2005, LEXinform 0208557 (»Decision-making aid for assessing managing directors under insurance law in a GmbH, cooperating shareholders in a GmbH

The minutes of the meeting of the National Association of Statutory Health Insurance Funds, the German Pension Insurance and the Federal Employment Agency on issues relating to joint collection of contributions from April 9, 2014, LEXinform 0208235, provide an up-to-date overview of the question of the (pseudo) independence of partner-managing directors.

In principle, there is a social security obligation in the case of a management right of the shareholders or a supervisory board with regard to the type, place, time and duration of the services to be performed according to the employment contract or the actual circumstances that take precedence (BSG judgment of 6.3.2003, B 11 AL 25/02 R , GmbHR 2004, 494). However, there is generally no social security obligation if the GmbH managing director determines the fate of the company decisively without being bound by instructions and freely structuring his activities and can prevent any instructions that are not convenient for him, especially with regard to the organization of his activities (BSG judgment of 14.12.1999 , B 2 U 48/98 R, BB 2000, 674).

The BSG has developed the following guidelines for the social security obligations of managing partners:

  • Minority shareholder managers: Shareholder managers with a capital stake of less than 50% are generally employed and therefore subject to social security contributions;

  • Majority shareholder-managing directors: shareholder-managing directors with an equity stake of at least 50% of the share capital of the GmbH are self-employed and therefore not subject to social security;

  • Atypical minority shareholder managing director: This is a minority shareholder managing director who, due to their actual influence on the decision-making process of the GmbH, can prevent any instructions that are not appropriate to them with regard to the organization of their activities. You are regularly self-employed and therefore do not have any social security contributions.

In the meantime, a judgment by the BSG has questioned whether these guidelines would survive (BSG judgment of November 24, 2005, DStR 2006, 434). According to this judgment, self-employed managing directors of a GmbH can also be subject to pension insurance if they are to be regarded as so-called "self-employed persons similar to employees" within the meaning of Section 2 Clause 1 No. 9 SGB VI. According to the case law, this should be the case if a GmbH managing director is only employed by a GmbH and he does not employ any ArbN himself.

Due to the large number of GmbH managing directors affected - up to 1 million - and the resulting threat to the existence of medium-sized companies - contributions would have to be paid for the last four years - the legislature reacted quickly and defused the BSG ruling by changing the law of the Household Accompanying Act 2006 (HBeglG 2006, BGBl I 2006, 1402). Since July 1, 2006, this provides for changes to Section 2 Clause 1 No. 9 and Section 2 Clause 4 No. 3 SGB VI. According to this, the clients of the company (§ 2 sentence 1 no. 9 SGB VI) and the ArbN of the partners are also the ArbN of the partner (§ 2 sentence 4 No. 3 SGB VI). Thus, the requirements that the BSG applies to the person of the partner-manager only need to be present in relation to the company, which is regularly the case. The change in the law applies retrospectively to all activities carried out since 1.1.1999.

Note:

In the case of a GmbH & Co. KG, these principles for determining the social security obligation of the managing director are to be applied accordingly. According to this, the managing director of the KG, who is only involved as a limited partner, is regularly subject to social security contributions, unless he can exert significant influence on the KG. On the other hand, there is no social security obligation if the managing director of the KG holds more than 50% of the shares in the general partner GmbH.

Example 1:

A is with a limited partner's participation in the amount of 15% stake in a GmbH & Co. KG of which he is the sole managing director. He is also part-time managing director of the general partner GmbH, in which he also has a 15% stake.

Solution 1:

Limited partner A has an employment relationship that is subject to social security contributions because, due to its low participation rates, it cannot exert any significant influence on either the KG or the GmbH.

2. The legal figure of the controlling partner

The review of the social cause as a general examination station at the vGA still requires an addition in the tax law figure of the controlling shareholder. Regardless of appropriateness Transactions between the company and the controlling shareholder require the transparency requirement and the observance of a formal strictness under civil law, because otherwise it would be possible to use the results of the corporation for tax purposes In hindsight to falsify. The possibility of manipulation due to undefined or unclear agreements speaks for the social cause, because it does not correspond to the regular behavior of a profit-oriented tax subject. It should be emphasized that in this respect only the possibility of manipulation of the result by the controlling shareholder is important, but not the manipulation actually carried out (H 36 III. [Caused by the corporate relationship] KStH 2004).

Formal prerequisites for avoiding the »suspicion of manipulation« in agreements between the company and the shareholder are in this respect

  • effectiveness under civil law and

  • clear advance agreements.

This reads as follows in one of the last BFH rulings issued on this (BFH ruling of February 23, 2005, I R 70/04, BStBl 2005, 882):

»If the beneficiary shareholder is a controlling shareholder, a VGA can also be assumed if the corporation renders a service to him or to a person closely related to him, for whom it is based on a clear, in advance, civil law effective and actually implemented agreement missing (permanent case, see e.g. Senate judgments of December 17, 1997, IR 70/97, BFHE 185, 224, BStBl II 1998, 545; of March 27, 2001, IR 27/99, BFHE 195, 228, BStBl II 2002, 111, each with further references). In these cases, the behavior of the corporation and its shareholder or person closely related to it, which deviates from the arm's length comparison, indicates the cause in the corporate relationship. "

Both prerequisites are examination facts that are borrowed from the tax law of family partnerships. The parallelism of both legal institutions in the → BFH jurisprudence should therefore not come as a surprise.

3. The factual prerequisites in detail

3.1. The "controlling partner"

According to the ruling of the BFH, a dominant position can generally be assumed if the shareholder has the majority of the voting rights and can therefore exercise decisive influence at shareholders' meetings. This is generally the case when he's over more than 50% of the voting rights disposes. A relationship to other parties involved does not, as such, require control of a corporation through similar interests (BFH judgment of 15.3.2000, I R 40/99, BStBl II 2000, 504).

Does a partner only have 50% or less of the company shares, he can nevertheless be equated with a controlling partner (→ controlling partner) if he is with other rectified Shareholders pursuing interests cooperatesin order to bring about a decision-making process by the corporation that corresponds to its shareholder interests (BFH judgment of 9.4.1997, I R 52/96, BFH / NV 1997, 808; BFH judgment of 13.12.1989, I R 99/87, BStBl II 1990, 454).

The opinion previously held by the tax authorities that only personal relationships between shareholders would speak for equal voting behavior in the shareholders' meeting, which could result in a dominant position (clique theory), was rejected by the BVerfG (BVerfG judgment of 1.2.1989, BStBl II 1989 , 522 ff. And H 36 III. [Caused by the corporate relationship] (controlling partner) KStH 2004).The partner must be able to continuously and unrestrictedly influence the voting of the other partner (see also Section 8a, Paragraph 3, Clause 3 KStG, old version).

A controlling influence exists if the shareholder concerned can force and determine the conclusion and the content. It will therefore depend on whether the shareholder can enforce his or her will in the company in the long term based on the voting rights he is entitled to (direct or indirect majority shareholdings or via corresponding voting agreements). It can be sufficient for this that, in the absence of control by a single shareholder, several shareholders bundle their will in the company and enforce them in the same direction for their purposes. However, there should be clear indications (e.g. pool contracts), since a one-time, similar voting behavior or family closeness of the shareholders alone is not sufficient.

Finally, the BFH also extends the special conditions for controlling shareholders related parties, except in cases where the related parties are themselves shareholders of the corporation concerned (BFH judgment of 29.9.1981, VIII R 8/77, BStBl II 1982, 248).

3.2. The clear (advance) agreement

In the case of the requirement of a clear advance agreement (retroactive effect or prohibition of additional payments), both the temporal as well as the content Aspect of the agreement. For example, a retroactive salary increase based on a shareholder resolution of June 30, 2001 to January 1, 2001, regardless of the content-related agreement (third-party comparison), is to be regarded as a vGA solely because of the non-retroactive effect, insofar as it relates to the first half of the year.

A royalty agreement that leaves the → assessment basis (BMG) for the royalty unclear is due to the content indeterminacy to be viewed as socially induced. An outside third party must be able to calculate the amount of the bonus. The agreement must not contain any discretionary decision, as otherwise there would be room for an arbitrary shift in income to the shareholder.

Example 2:

X-GmbH agrees with the long-term managing directors B (42% share) and C (48% share), in addition to the current salary, the following bonuses: B and C should be entitled to 10% of the tax balance sheet profit from 1.1.04. The entitlement is granted with the proviso that

  1. the GmbH retains an appropriate rate of return on the share capital and

  2. the shareholders' meeting does not decide on any other determination.

In 04, the GmbH formed a bonus provision of € 100,000. B and C received the amount of € 50,000 each in March 05.

Solution 2:

Detached from questions (which cannot be answered here) about the appropriateness of the royalty agreement, B and C pursue the same interests and are therefore to be classified as a "controlling group".

Afterwards, a clear, clear and discretionary advance agreement on the bonus regulation must be in place.

This is both a violation of the prohibition of arbitrariness (“subject to the shareholders' meeting”) and the requirement of certainty of the → assessment basis (“appropriate interest on the share capital”).

The agreement is already a vGA, which for the GmbH to an off-balance sheet addition according to § 8 Abs. 3 Satz 2 KStG in VZ 04 and with B and C to capital income in VZ 05 according to § 20 Abs. 1 Nr. 1 EStG of each leads to € 50,000 (BFH judgment of April 29, 1992, IR 21/90, BStBl II 1992, 851).

At Continuing obligations (in particular rental and service contracts) are according to the ruling (BFH judgment of July 29, 1992, I R 18/91, BStBl II 1993, 139) the actual Exercise and the regular exchange of services take precedence over the agreed form. In addition, in the context of long-term obligations, it is permissible to view a contract with a controlling shareholder-managing director temporarily as actually carried out (BFH judgment of December 15, 2004, I R 32/04, BFH / NV 2005, 1374).

Example 3:

In the employment relationship between the controlling shareholder-managing director and the GmbH, it is agreed that changes to the service should only be effective on the basis of a written contract with the consent of the shareholders' meeting. The shareholders' meeting approves a salary increase from 1.1.01; a written agreement is not concluded.

Solution 3:

If the services are regularly provided in the modified way from 1.1.01 onwards, the written form requirement can be waived. There is no social cause if the prohibition of retroactive effects and the arm's length benchmark have been observed.

Especially with the one-man GmbH, which is identical to each other, this is important Prohibition of self-contracting according to § 181 BGB to pay attention to. According to this, the managing director cannot conclude a contract with himself, e.g. an employment contract, with effect under civil law. Section 35 (4) GmbHG expressly repeats the general prohibition for the one-man GmbH. An exemption from the prohibition must therefore be applied for, which is then deposited with the commercial register.

The employment contract is pending ineffective until the exemption is entered in the commercial register (until approval). This would constitute a violation of the principle of the advance agreement (another expression: prohibition of additional payments) and the salary payments would be eo ipso a VGA. In contrast, the case (BFH judgment of 23.10.1996, I R 71/95, BStBl II 1999, 35) allowed an individual exception:

After this decision, it does not depend on the early approval (entry in the commercial register) before the first payment, if there is only a clear advance agreement and the second step (approval application) was made immediately (i.e. without delay). In accordance with civil law, according to which the approval also applies retrospectively (ex tunc), in this exceptional case the BFH did not accept a VGA for the period up to which no approval was available.

The clear advance agreement must actually be carried out. If a salary agreement with the controlling partner-managing director has not been properly implemented, the entire salary expense is a hidden profit distribution. The fact that the shareholder would have been entitled to appropriate remuneration by law in the absence of a remuneration agreement must not be taken into account when assessing the VGA (BFH judgment of October 20, 2004, I R 4/04, BFH / NV 2005, 723). See, however, on the blocking effect of Art. 9 OECD-MA → Controlling shareholder.

3.3. Royalty regulations

In the case of remuneration for activities in favor of the controlling shareholder, the formal requirements of clarity and the prior agreement (non-retroactivity) must be observed in addition to the content; s.a. → Managing Director salary. The requirement of clarity relates in particular to the → assessment basis (BMG) for the bonus. However, the requirement of clarity is only violated if there are still doubts according to the required interpretation (BFH judgment of 11.8.2004, I R 40/03, BFH / NV 2005, 248). For example, a regulation that leaves the basis for calculating the bonus unclear, as there is no regulation as to whether the annual surplus should be used before deduction of corporate tax or before deduction of the bonus, for formal reasons alone, is not in line with the market. The retroactive agreement of both the bonus itself and its BMG is viewed by the Rspr. And the tax authorities as behavior that is not customary in the market and thus qualifies as a VGA.

Example 4:

A-GmbH grants shareholder-managing director A a bonus commitment, according to the content of which A will receive a net profit bonus in the amount of € 60,000 is due. According to the general principles, the bonus is in the amount of 20,000 € to be regarded as vGA. As of December 31, 2005, A-GmbH is permissible to set up a provision in the amount of € 60,000. The bonus is paid on June 30, 2006 (see BMF of May 28, 2002, BStBl I 2002, 603).

Solution 4:

At the A-GmbH there is an addition in the amount of € 20,000. This addition increases the income in 05.

At A the inflow leads in 06 in the amount of € 40,000 in income from non-self-employed work, in the amount of € 20,000 for income from capital assets (vGA).

According to the Federal Ministry of Finance of May 28, 2002 (loc. Cit.), There is a Additional calculation in which it is to be recorded in what amount a vGA is to be assumed (partial amount I) and to what extent partial amount I has been added to the tax balance sheet profit (partial amount II). In the present case, both partial amounts correspond; after the bonus has been paid out, both partial amounts must be dissolved.

The ancillary calculation becomes tax-relevant if a bonus provision in the tax balance sheet no longer applies, e.g. due to the waiver of the shareholder-manager. Off-balance sheet corrections must be made in order not to double the amounts qualified as VGA.

Example 5:

For the → business year 02, the shareholder-managing director G was given a sales bonus in the amount of € 30,000 pledged and a corresponding provision made in the tax balance sheet. The full bonus is to be qualified as a vGA (based on the reason) and is added accordingly in the → assessment. On January 15, 2003, G waived the payment of the bonus for social reasons, the claim was only worth 70%.

Solution 5:

In accordance with the principles in the aforementioned letter from the BMF dated May 28, 2002, the partial amounts I and II each amount to € 30,000. Due to the waiver of the bonus, income in the tax balance is generated in the amount of Nominal value of the provision (€ 30,000), outside the → balance sheet a deduction in the amount of Partial value (→ hidden deposits). The partial value is € 21,000. I.H.d. The non-recoverable part (€ 9,000) has to be reduced as a so-called negative VGA, as the amount was accepted as VGA at the time the provision was created. It should be noted that, according to the prevailing opinion, a reduction is only to be made up to the amount in which the VGA was originally added to income in such constellations (at most up to partial amount II). The prevailing opinion assumes that this off-balance sheet cut is an equitable measure that is only intended to compensate for the original addition. In my opinion, a reduction - regardless of the addition actually made - should always be made in the amount in which a VGA was materially available.

Tax problems can arise in Crisis situations from → corporations. Board members or managing directors of corporations may be obliged under company law to agree to a reduction in remuneration (see Section 87 (2) AktG). It is often agreed that the salary will be waived in the future, but an additional payment will be made in the event of an improvement.

In the past, the tax authorities predominantly took the view that such a waiver was not possible for tax purposes and that additional salary payments should therefore be regarded as vGA with corresponding consequences on the level of income generation and use. The BFH (judgment of December 18, 2002, I R 27/02, BFH / NV 2003, 824) has rightly rejected this view. The additional salary payments represent deductible → operating expenses at the level of the GmbH and income for the shareholder-managing director in accordance with § 19 EStG. However, it should be noted that these agreements must not violate the formal transparency requirement and the prohibition of retroactive effect as regards content.

3.4. Pension agreements

3.4.1. Principles

For pension commitments, in addition to the general VGA criteria (see also → Managing Director salary), there is also a special right for controlling shareholders.

Example 6:

In the managing director employment contracts of April 1, 2001, both sixty-year-old shareholders A and B (with a share of 40% each) were granted a non-forfeitable, legally binding pension commitment immediately after the establishment of the GmbH (February 1, 2001). In the event of permanent incapacity for work, at the latest, however, upon reaching the age of 65, both should receive a retirement pension of 70% of their last earnings.

At the same time, the pension should compensate for activities in a previous (predecessor) company.

The GmbH formed pension provisions for the first time in the → balance sheet as of December 31, 2004 in the amount of the correctly determined partial values.

A.

B.

Balance sheet item 31.12.03

0 €

0 €

+ Allocation according to balance sheet

+ € 80,000

+ € 400 thousand

Partial value 31.12.04

80 T €

400 T €

In the case of controlling shareholders, it should also be noted that due to the so-called non-retroactivity for the vesting period only the time as managing director is eligible. The controlling partner must earn the pension commitment in his function as managing director. In addition to this vesting period, a trial or waiting period of two to three years must be awaited from the managing director before a pension commitment is issued. In the case of a newly founded corporation, a pension commitment can only be issued if the future economic development of the company can be reliably estimated. These requirements (vesting period and waiting period) are largely undisputed between the tax authorities and the case (see last BFH judgment of February 23, 2005, I R 70/04, BStBl 2005, 882). The waiting time can also be shorter or completely waived in individual cases. This applies, for example, if the GmbH emerges from a company that has already existed for a long time (→ business split or → conversion) or if there are no justified doubts about the future profitability of the GmbH because the managing director generates significant sales (e.g. own client or customer base) in the company contributes (BFH judgment of April 24, 2002, IR 18/01, BStBl II 2002, 670; see also BFH judgment of August 20, 2003, IR 99/02, BFH / NV 2004, 373).

Solution 6:

Detached from the substantive legal shortcomings of the pension commitment (no pension commitment immediately after employment; earnings prospects of the newly founded GmbH were not waited for; 60-year-old managers lack the "earning power" of the pension), which alone lead to a vGA Violations of the special right of the controlling shareholder, if

  • the vesting period was too short and especially when

  • the pension agreement was not implemented in the years 01–03, as the provision was recognized as a liability for the first time on December 31, 2004 in the → balance sheet of the GmbH.

Conclusion: In 04, an off-balance-sheet addition of € 480,000 was made for the GmbH (Section 8 (3) sentence 2 KStG). There is just as little use of income by the GmbH as there is - in the absence of an inflow - taxable capital income for A and B (no Section 20 (1) No. 1 EStG).

3.4.2. Further decisions

A pension entitlement after reaching the age of 60 can no longer be »earned« (BFH judgment of 11.9.2013, BFH / NV 2014, 728). However, according to the BFH ruling of July 14, 2004 (IR 14/04, BFH / NV 2005, 245), there is an exception if the pension commitment is made (shortly) before the age of 60 and the pension is extended to the age of 70 relates.

The BFH issued a ruling on September 15, 2004 (I R 62/03, BStBl II 2005, 176) on the relationship between an oversupply and a vGA, in particular a pension entitlement due to a cash conversion.

The parallel payment of the pension and salary of a partner-managing director who is still employed after reaching the age limit is a vGA if it does not stand up to the hypothetical → arm's length comparison (BFH judgments of March 5, 2008, BFH / NV 2008, 1273 and of October 23, 2013, BFH / NV 2014,781).

There should also be a hidden profit distribution (due to the fact that it is unusual) if the current salary is increased and there is thus an indirect pension increase if the contract is drafted accordingly (see BFH judgment of May 20, 2015, I R 17/14, LEXinform 0934742).

3.4.3. Waiver of pension entitlement

If a shareholder-managing director waives his pension entitlement, there is a hidden contribution to the corporation (Section 8 (3) sentence 3 KStG; see BMF of August 14, 2012, IV C 2 - S 2743/10/10001: 001, Rn. 1, LEXinform 5234112). The valuation of the hidden deposit is based on the partial value. It depends on what amount the shareholder-managing director would have to spend at the time of the waiver in order to acquire an equally high pension entitlement against a comparable debtor.

According to the BMF letter dated August 14, 2012 (IV C 2 - S 2743/10/10001: 001, Rn. 2, LEXinform 5234112), if the pension entitlement is completely waived before the insured event occurs, a hidden deposit in the amount of the portion of the pension entitlement already earned up to the time of the waiver.If the pension entitlement is partially waived, there is a hidden contribution to the extent that the present value of the pension benefits earned by the managing director up to the point of waiver exceeds the present value of the pension benefits remaining after the partial waiver. This applies both to a waiver of future entitlements (so-called "future service") and to subsequent changes to the pension commitment, which include a reduction in the previously promised pension benefits.

In the case of a controlling shareholder-managing director, the partial entitlement from the previously promised pension benefits can be set as the earned portion of the pension benefits, which corresponds to the ratio of the length of service from the time the pension commitment is made to the time of waiver on the one hand and the time from the granting of the pension commitment to the planned on the other hand, corresponds to a fixed age limit (pro rata projected unit credit from pension commitment). In the case of a non-controlling partner-managing director, the calculation is not based on the time of the granting of the pension commitment, but on the start of the employment relationship (so-called »projected benefit obligation«; cf. BMF of August 14, 2012, IV C 2 - S 2743/10 / 10001: 001, Rn. 3, LEXinform 5234112).

3.4.4. Assumption of a pension commitment against a replacement payment

In principle, the redemption of a pension commitment issued by the employer leads to an inflow of wages for the employee even if the redemption amount upon demand the employee is paid to a third party to assume the pension obligation (BFH judgment VI R 6/02 of April 12, 2007, BStBl II 2007, 581). This is conceded with the Suffrage and the resulting early fulfillment of the pension commitment entitlement.

If, on the other hand, only the debtor of the pension commitment changes against payment of a transfer amount and is the employee no right to vote has been granted, this does not lead to the inflow of wages (BFH judgment VI R 18/13 of August 18, 2016, DStR 2016, 2635). There is also no "factual" right to vote, since such an assumption, according to the BFH, would not be compatible with the separation principle.

4. Other (direct insurance)

A direct insurance (direct claim from the life insurance of the insured managing director against the insurance company) can also be considered as a company pension scheme for managing directors. In the event that contributions to a Rürup pension are paid in addition to direct insurance, the special expenses deduction is limited.

On the question of the unconstitutionality of the restrictions on this special edition deduction, see BFH judgment X R 35/12 of July 15, 2014, LEXinform 0442692).

5. Bibliography

Janssen, assumption of a pension commitment against transfer payment: no inflow of wages, NWB 2016, 3776; Maurer in Preißer, Die Steuerberaterprüfung 2014, 13. A., Volume 2, Part C, Chap. III 4.3.1.2 and 4.4 .; Geiger in Dötsch et al., KSt, marginal number 300 ff. On Section 8 (3) Jakob / Zorn, "Non-excretion" as the sword of Damocles for non-financed pension commitments to managing director ?, DStR 2014, 77; von Medem, meaning of the »actual circumstances« when delimiting self-employment and dependent employment in social security law, DStR 2013, 1436; Eismann, change in case law on »prima facie evidence« in the private use of company cars by employees, DStR 2013, 2740; Arens, the GmbH managing director in labor, social security and tax law - current developments, DStR 2010, 115; Wackerbarth, The determination of the remuneration of the shareholder-managing director, GmbHR 2009, 65; Müller Potthoff / Lippke / Müller, Appropriateness of royalties for minority shareholder managers, GmbHR 2009, 867.

6. Related Lexicon Articles

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→ arm's length comparison

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