GmbH - Pension Promise
December 14, 2019 | 150,00 EUR | answered by Steuerberater Knut Christiansen
Hello,
I am the managing partner (30% share) of a GmbH, 62 years old.
The GmbH has 3 other shareholders with shares of 30%, 20%, and 20% respectively.
The company has promised me a pension, which will be due in 2022.
The pension has been secured as usual with a cover insurance policy and the corresponding provisions.
In 2022, the corresponding amount will be paid out by the insurance company to the company for my pension.
However, I now find myself in a situation where I would like to work for 5 more years than planned (until I am 70).
The other shareholders would support this, so a corresponding shareholder resolution is not a problem.
I am aware of the issue of hidden profit distributions (vGA).
My questions are:
Can I also claim the pension at the age of 70?
If YES, how can the amount paid to the company in 2022 be invested (parked) in a way that is secure for me in terms of guardianship and insolvency?
If YES, will there be tax burdens for me or the company due to the extension of the working life by 5 years?
Do you see any other potential issues?
Thank you in advance.
Good morning,
Thank you for using ask-einen.com!
I would like to evaluate your questions as follows within the scope of an initial assessment. Please note, however, that this forum cannot replace personal advice, but only allows for an initial tax assessment. Missing or incomplete information can change the legal result. Therefore, my assessment should be reviewed by a local advisor before any concrete implementation and, if necessary, even secured with the tax office through a binding ruling to avoid negative tax consequences.
In practice, it is possible and has been done quite often that the (shareholder)- director of a GmbH continues to work for the company after reaching retirement age, even though a pension promise has been made. In this case, if pension and ongoing salary are received concurrently, there would regularly be a hidden profit distribution, as a prudent merchant would not grant such double payments. Therefore, in order to prevent a hidden profit distribution, the pension payment must be withheld until the director actually retires from active employment. The "delay" may be compensated with an increased pension. This agreement (extension of working hours, postponement of retirement date) must then be brought about by a shareholder resolution.
To ensure insolvency protection, the pension reserves must be legally pledged. It is advisable to transfer the money to a separate account for this purpose. The pledge should be checked/prepared by a lawyer specializing in insolvency law.
There are no tax consequences for the GmbH or you as a shareholder/director if the legal "rules of the game" are followed and no hidden profit distribution occurs. Since you are not waiving the promise, there is no fictitious inflow of salary, for example. Furthermore, in the absence of a hidden profit distribution, the GmbH's profit cannot be increased.
As discussed at the beginning, I recommend consulting a local tax advisor. I assume that the GmbH has a tax advisor who can be consulted in this matter. Furthermore, in such a case, it is advisable to secure the situation through a binding ruling from the tax office. This can provide legal certainty because the tax office evaluates the unrealized situation and is then bound by the statements when the situation is implemented as described.
If you have any further questions, please feel free to contact me.
Best regards,
Knut Christiansen
Tax Advisor
