28. September 2020

Value of expert opinions

The following background to the need for pension commitment reports, which is often discussed in specialist circles, should be taken into account:

Direct pension commitments to controlling managing directors or managing directors of corporations are always based on labour, civil and social law principles. However, they are also assessed according to commercial and tax law. The conflicting views and interests in connection with the legal review of existing, direct pension commitments, which are based solely on this, must absolutely be taken into account in a meaningful expert opinion. Valuable expert opinions, with assumption of liability, can therefore only be provided by independent and court-approved or publicly appointed legal advisors.
Standard and short expert opinions, which are frequently offered by insurance companies or so-called “company pension scheme pension management companies “, generally deal only with the consideration of reinsurance in the context of so-called “valuation expert opinions” or “short testimonials” from an actuarial perspective. As a logical consequence, these elaborations must always bear the indication that an authorised legal advisor must be consulted for legally compliant implementation.

It is therefore essential to note that legal advice in this regard may only be provided by publicly appointed and licensed legal advisors or legal service providers. This means that legal advisors, regardless of whether they are a corporation (a legal advisor Ltd is also possible if an accredited legal advisor transfers his legal advice licence to the corporation) or an individual, must always be determined and accredited by the sovereign authorities of the administrative authorities as an organ of the administration of justice on the presentation and elimination of illicit legal advice within the framework of occupational pension schemes and working time account models).

This authorisation can only be granted to freelance legal advisors who are not bound by any instructions and who are only bound by their public mandate. As a result, financial services companies are not allowed to offer or provide legal advice, as they do not have a legal advice permit due to the conflict of interest with their actual business activities. For the same reason, this also applies to subsidiaries of financial services companies. It is therefore completely irrelevant how many lawyers or legal advisors a company employs. It is therefore exclusively a question of whether the company itself holds a legal advice licence. A large number of salaried lawyers do not generate a legal advice permit for the company in question. Unfortunately, in the consulting practice of the “direct pension commitments” to the above-mentioned group of persons, these facts are often ignored and the consequences are not considered.

From the context described above, the question why many “expert opinions” in the area of “direct pension commitments” are worthless for a “small” fee is answered automatically if they were prepared by consultants or consulting firms without a legal advice permit. The note on such papers: “Please contact an authorised legal advisor for final legal clarification” is a clear indicator that the actual recoverability is lacking. Who should then be liable for the correctness in this context? The affected shareholder-managing director or shareholder-board is then exactly as far as before. With such an economic short certificate he does not receive a statement that is exempt from liability and legally secure, which finally has to withstand every audit by the tax authorities. Because it concerns frequently around tax arrears payments in substantial height or ineffective pension requirements. If necessary the existence can stand on the stakes. Even if such “expert opinions” are flawless in terms of content, there is regularly no appreciation under labour, civil or social law.

The following question must therefore be permitted:

What is an expert opinion worth if it has to be reviewed by a third party?

It should therefore be regarded as a conclusion for the “right” consulting approach that only accredited legal advisors should prepare the subject area of the “direct pension commitment” to the named groups of persons in a way that exempts the financial or tax advisor from liability, so that the necessary financial assets for reinsurance or the tax transactions can then be dealt with. Only by this correct authority division a professional consultation of the final customer can take place. Our experience has shown that financial and tax advisors gain a great deal of reputation against this background, as the end customer can now be offered value-added solutions that provide the consultant in charge with classic and valuable unique selling points.

In this context, Kenston Pension Ltd acts as your authorised legal service provider or legal advisor, providing you with the aforementioned and non-liable expert opinion concepts.