Bankruptcy money

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According to German law, in the event of the insolvency of their employer (formerly: bankruptcy ) , employees working in Germany receive so-called insolvency money (formerly: bankruptcy failure allowance) to compensate for their lost wages.

Funding and Survey

Insolvency money is paid by the Federal Employment Agency and financed by employers by paying a contribution. Corporations , institutions and foundations under public law do not have to pay a levy , as they are not capable of bankruptcy. Legal persons under public law for whom the federal government, a state or a municipality ensures solvency by law are also exempt from the levy ( Section 358 SGB ​​III ).

The levy for the insolvency money was levied retrospectively by the employers' liability insurance association until December 31, 2008 , because the Federal Agency does not keep a directory of entrepreneurs and therefore did not know the employers who were liable to pay the levy. Due to the organizational reform of the statutory accident insurance, the insolvency levy has been paid monthly as a new U3 levy together with the total social security contribution via the health insurance funds (collection points) since January 1, 2009 . The collection agencies pay the levy to the Federal Employment Agency every working day together with the total social security contributions.

Until December 31, 2009 the contribution rate was 0.10% of wages . The contribution rate for the 2010 calendar year was raised to 0.41% and reduced to 0.0% for 2011, as sufficient reserves had previously been set up. In 2012 the contribution rate was 0.04%. As a result of the amendment to Section 360 SGB ​​III , the contribution rate was set by law at 0.15% from 2013 and at the same time the Federal Ministry of Labor and Social Affairs was authorized to increase or reduce this contribution rate for a calendar year if the shortfall or the reserves are the average annual expenses of the previous five calendar years. This is intended to achieve a decoupling from economic development. For 2016, the contribution rate was set at 0.12%. Due to a surplus from the levy and the expected good economic situation, the levy rate for 2017 was reduced to 0.09%.

Payment, inflow to the employee

The insolvency money is paid for a maximum of three months. This period generally comprises the three months before the decision to open insolvency proceedings or the rejection of the insolvency application due to lack of assets. These resolutions are issued by the competent local court - insolvency court - If the employment relationship has been terminated before this day (e.g. by written termination according to § 623 BGB or by a termination agreement), the last three months of the employment relationship will be replaced if there are still open months for this period There are entitlements to wages.

If the opening of insolvency proceedings by a debtor or the company has not been applied for at the time of the termination of the business activity or such an application has been rejected as inadmissible, the competent employment agency has to meet the requirements for an insolvency event according to § 165 para. 1 sentence 2 No. 3 SGB III to be examined.

The operating activity must have been completely and permanently terminated; an interruption with the aim of resuming operations in the not too distant future does not count as a complete termination of the operating activity. As a rule, a business deregistration is sufficient as proof of complete termination of business activity. However, the date of complete termination of operations can also be determined from other sources, e.g. B. Details of the employees or the collection points. In addition, at the time of the complete cessation of business activity, insolvency proceedings obviously do not have to be considered due to lack of assets. This means that a rejection due to lack of assets is to be expected, since the assets remaining in the debtor company or to be realized in the context of insolvency proceedings are not sufficient to cover the costs of the insolvency proceedings.

The employment agencies request an overview of the financial situation at the time of termination of the business activity from the owner / manager. Even if this request is made with the threat of a fine in accordance with Section 404 (2) No. 23 SGB III and a fine procedure is very often initiated, many employers do not respond to this request. This is particularly problematic as the masslessness must be evident.

In the case of a legal person (such as a GmbH), however, the fact that the managing director has disappeared does not have to preclude the obviousness of the masslessness, because it cannot normally be assumed that he has disposed of seized assets in favor of the company.

Since January 1, 2004, the amount of insolvency money has been limited. The gross wage on which the calculation of the insolvency benefit is based is limited by the monthly income threshold for unemployment insurance.

Tax treatment

Insolvency money is tax-free as a wage replacement benefit in accordance with Section 3 No. 2 EStG . However, it is taken into account when determining the personal tax rate ( progression proviso ) and must therefore be stated in the income tax return for the year of the inflow ( inflow principle ). The insolvency payment was received in the year in which the employee actually received the insolvency payment. In the case of pre-financing for insolvency payments according to Section 170 SGB ​​III, the employee receives an amount as a loan from the pre-financing bank before the actual insolvency payment event (rejection due to lack of assets / opening of insolvency) (usually at the time of normal wage payment); the insolvency money is only transferred to the bank by the Federal Employment Agency in the following months, which may well be in the following calendar year. In terms of tax law, the payment of the loan is considered an inflow (see BFH of March 1, 2012, Az. VI R 4/11).

For cross-border commuters who work in Germany but live abroad and do not have to pay tax on insolvency money in Germany or in their home country, a fictitious income tax is deducted from the insolvency money. ( Section 167 (2) SGB III) In certain constellations, taking into account double taxation agreements, this can lead to the insolvency payment being significantly lower than the employee's net wages before the employer's insolvency. The European Court of Justice has ruled that this regulation complies with European law and, in particular, does not violate the prohibition of discrimination .

Application and other requirements

In order to receive the insolvency money, an application is necessary. You can get this from the Employment Agency, send it to you on request by telephone or from the Federal Employment Agency's website. When filing an application, there is a deadline of two months from the insolvency event. As soon as the decision to initiate or reject the proceedings is made by the bankruptcy court, the employees have two months to file an application. This also applies to the cessation of operations.

Since an employee cannot know whether and, if so, at what point in time the employment agency will officially determine that the company will cease operations, it can only be recommended to submit the application as early as possible and to have the application confirmed (e.g. by an application handed out with a date and a show of hands or by requesting the application by telephone.)

As soon as the written notice of termination is given prior to the insolvency event, the insolvency money will be paid retrospectively from the date of termination. The termination is only valid in writing in accordance with § 623 BGB. If someone does not have a written notice of termination, the insolvency money will be paid retrospectively from the date of the decision for a maximum of three months.

The outstanding remuneration must be confirmed by the employer (in the event of rejection due to lack of assets or cessation of business) or by the insolvency administrator (only when bankruptcy is opened ) by means of a so-called insolvency payment certificate.

advance

Insolvency money will only be approved if the insolvency payment period can be determined. This is the case when insolvency proceedings have opened or the application has been rejected for lack of assets. The employment agency can make an advance on the insolvency money if

  1. an application has been made to open insolvency proceedings against the employer's assets,
  2. the employment relationship has ended and
  3. the prerequisites for entitlement to insolvency money are met with sufficient probability.

To 1: As a rule, the file number of the bankruptcy court serves as evidence. If the applicant does not report this, the Federal Employment Agency tries to determine this as part of the official investigation. However, the insolvency courts are not allowed to provide any information about the insolvency application unless it is an application by the employer.

To 2: The letter of termination or the termination agreement or the fixed-term employment contract serves as evidence. It should be noted that z. For example, if you terminate your contract on February 15 and April 30, the employment relationship will not end until April 30. A decision on an advance payment is therefore only possible from May 1st. An exemption from March 15 only ends the employment relationship, but not the employment or employment relationship.

Re 3: An insolvency payment certificate completed by the employer or an informal certificate with the period and amount (gross / net) of the outstanding remuneration serves as evidence.

The employment agency determines the amount of the advance payment at its best discretion (usually 50–80% of the open net wage). The advance payment is to be offset against the insolvency payment. It is to be repaid if a claim to insolvency money is not granted or is only granted to a lesser extent.

Pre-financing of the bankruptcy money

If, in the event of the employer's insolvency, the continuation of an insolvent company comes into consideration and there is a likelihood of being able to maintain ongoing operations and keep some of the jobs, a so-called insolvency pre-financing comes into consideration. The provisional insolvency administrator or, in the case of self-administration, the insolvent company and its advisors can in fact enable the insolvency money to be paid out before the claim to the insolvency money has even arisen. The aim is to avoid payment defaults or payment delays for employees in order to enable them to continue to work in the company with motivation. In cases of pre-financing for insolvency money, a third party (usually a bank) buys the claim against the Federal Employment Agency for the insolvency money from the employee and at the same time has the claim in the amount of the purchase price assigned. The employee receives the purchase price, thus his net salary secured by the insolvency money. In order to prevent abuse, the pre-financing of the insolvency money requires the approval of the Federal Employment Agency (cf. § 170 Paragraph 4 SGB III).

Standards: German law and European law

The legal basis for insolvency money is Section 3 Paragraph 4 No. 5 , Section 165 ff. (Until March 31, 2012 Sections 183 ff SGB III old version), Sections 323 ff. SGB ​​III .

The guarantee of payment of unfulfilled claims of employees in the event of the insolvency of the employer is regulated in Council Directive 80/987 / EEC of October 20, 1980 on the approximation of the laws of the member states on the protection of employees in the event of the insolvency of the employer . It is modified by Directive 2002/74 / EC of September 23, 2002 amending Council Directive 80/987 / EEC on the approximation of the laws of the member states on the protection of employees in the event of the employer's insolvency . This modification made the judgment of the European Court of Justice obsolete, in which it was stated that the national German regulation on the insolvency payment period (at that time Section 183 (1) SGB III, since April 1, 2012 Section 165 (1) SGB III) was not in conformity with European law .

Bankruptcy creditor

As already explained, the Federal Employment Agency takes over the arrears wage and salary claims for the last three months before the opening of insolvency ( Sections 165 et seq. SGB ​​III), so that the wage and salary claims are then transferred to the Employment Agency. The Federal Employment Agency can then assert the claims that have been transferred to it as an insolvency creditor ( Section 55 (2) and (3 ) InsO).

Web links

Individual evidence

  1. ↑ § 1 Ordinance setting the contribution rate for insolvency money for the 2009 calendar year
  2. ↑ § 1 Ordinance setting the contribution rate for insolvency money for the 2010 calendar year
  3. ↑ § 1 Ordinance setting the contribution rate for insolvency money for the 2011 calendar year
  4. ↑ § 1 Ordinance setting the levy rate for the insolvency money for the 2012 calendar year
  5. ↑ Art. 4 Second law amending the Seventh Book of the Social Code
  6. ↑ § 360 SGB ​​III
  7. ↑ § 361 SGB ​​III
  8. ↑ Printed matter 17/11176 - Resolution recommendation and report of the Committee for Labor and Social Affairs on the draft law of the Federal Government - Printed matter 17/10750 - Draft of a second law to amend the Seventh Book of the Social Code (PDF) German Bundestag. P. 1. October 24, 2012. Accessed January 8, 2017.
  9. ↑ § 1 Ordinance setting the levy rate for insolvency money for the 2016 calendar year
  10. ↑ Printed matter 378/16 - Ordinance setting the contribution rate for insolvency money for the 2017 calendar year (PDF) Federal Council. S. 8. 14 July 16. Accessed January 8, 2017.
  11. ↑ § 1 Ordinance setting the contribution rate for insolvency money for the 2017 calendar year
  12. ↑ Landessozialgericht Sachsen-Anhalt: Judgment of December 15, 2004 - L 2 AL 133/03 - .
  13. ↑ ECJ, March 2, 2017, AZ C-496/15
  14. ↑ Application for insolvency payments for employees. (PDF), accessed on November 10, 2015.
  15. ↑ Directive 2002/74 / EC of September 23, 2002 (PDF), accessed on November 10, 2015.
  16. ↑ ECJ judgment of May 15, 2003 C-160/01 , case Karin Mau against Federal Labor Office