25. February 2020

Tax flanking

According to settled case law, the direct commitment made in the past by the previous pension debtor to the controlling shareholder-managing director does not trigger a wage inflow for him before the occurrence of the pension event. Because due to the pension promise no asset flows to him as partner managing director (yet), since the past pension debtor promised him as employer a supply from own, only at the time of the payment to be made. The pension agreement grants the shareholder-managing director only one claim from the pension commitment against the company (BFH18.8.16, VI R 18/13, marginal 18).

The redemption payment within the scope of the assumption of debt does not lead to an inflow of wages for the managing partner. By paying the redemption, the previous pension debtor does not fulfil a claim of the shareholder-managing director, but one of the third party from the contract on the discharging assumption of debt.

The previous pension debtor also does not assign a claim for payment against the third party to the shareholder-managing director by the payment of the remuneration. Rather, the agreement between the previous pension debtor and the third party with the consent of the shareholder-managing director merely exchanges the debtor of the obligation from the pension commitment. However, the (mere) assumption of debt according to § 415 (1) BGB merely leads to a change of debtor and does not (yet) result in an inflow to the pension beneficiary. It changes neither the character of the pension commitment nor its content (BFH 18.8.16, VI R 18/13, marginal 19).

In summary: If the employee or shareholder-managing director has no option to have the redemption amount paid to him alternatively, the employee’s claim to future pension payments is not (yet) met economically when the redemption amount is paid to the third party assuming the pension obligation. In this case there is therefore no inflow of wages (BFH 18.8.16, VI R 18/12, 2nd guiding principle). With its decision, the Federal Fiscal Court finally ended the legal uncertainties that had existed in this respect up to that point. The tax authorities also endorsed this decision (BMF 4.7.17, IV C 5 – S 2333/16/10002).