Credit balance
A credit balance (also known as a time value account , long-term account or long-term work account ) aims to provide a long-term leave of absence protected by social insurance law, e.g. B. to finance care leave , parental leave , early retirement or part-time work from the employee's income. In Germany, a written credit agreement between the employee and the employer in accordance with § 7b ff SGB IV required. Works agreements or collective bargaining agreements can also be concluded.
On the basis of a credit balance agreement, the employee's wages are saved in a credit balance managed by the employer, interest is paid and, in the event of a leave of absence or part-time work, is paid out by the employer. The credit balance must be in cash and protected against bankruptcy. The nominal value of the paid wages must be guaranteed by the employer.
According to Section 7d, Paragraph 1, Clause 1 of Book IV of the Social Insurance Code, the employer has to fulfill recording obligations under social security law. According to Section 7d (2) SGB IV, he must inform the employee at least once a year in text form about the amount of his credit balance. The employee may only bring as much remuneration into a credit balance as he needs, including the interest, to finance exemptions up to the point of drawing a retirement pension.
A credit balance can in fact represent a company pension, provided that it is not used for exemption purposes and therefore z. B. is paid to the employee on retirement or on leaving due to disability in the event of a malfunction or to the employee's heirs in the event of death.
Group of people
A credit balance is possible for all employees with permanent contracts. There is no statutory entitlement of the employee to the establishment of a credit balance. However, it is possible to provide for such a legal entitlement in a collective agreement or a works agreement.
Contribution of money only
Since January 1st, 2009 a credit according to Section 7d (1) SGB IV can only be used in money and no longer in time. According to the transitional regulation of Section 116 (1) SGB IV, in deviation from Section 7d (1) SGB IV, credit balances that were created as time credits before January 1, 2009 may continue to be kept as time credits. This also applies to new credit agreements based on previous company agreements or collective bargaining agreements. According to § 7b No. 3 SGB IV, any form of remuneration can be introduced. If it is a collective wage and employer and employee are subject to collective bargaining agreements, a collective bargaining clause is necessary for the contribution. A contribution of time z. B. from a flexitime or flexi account that has not been reduced or vacation entitlements that exceed the statutory minimum vacation of four weeks is only possible after conversion into cash ( Section 7d, Paragraph 1, Sentence 2, SGB IV). A tariff opening clause is necessary for vacation entitlements in accordance with the collective agreement. In addition to the wages, according to Section 7d (1) SGB IV, the corresponding employer's contribution to social insurance must also be included. This also applies to components of remuneration above the contribution assessment limits in statutory health insurance and pension insurance.
exemption
The purposes of exemption are regulated in Section 7c SGB IV. In particular, it concerns leave for care leave, parental leave, early retirement, further training and further education, sabbaticals. A limitation to certain exemption purposes is in accordance with Section 7c (2) SGB IV permitted A reduction in working hours can also be financed through a credit balance, e.g. B. to compensate for loss of income resulting from a (voluntary) reduction of working hours according to § 8 TzBfG.
The employee can freely determine the amount of remuneration paid out of the credit within the framework of appropriateness limits ( Section 7 (1a) SGB IV). A wage of at least 70% to a maximum of 130% of the assessment basis is considered appropriate. This is calculated from the average wage (gross income minus gross contributions) of the twelve months prior to the leave of absence.
Example:
Current total gross income 3000, - €. Ongoing payments to the account € 500. Assessment basis payout phase thus 2500, - €.
If the exemption is for a full calendar year, there is no vacation entitlement for this calendar year that has to be carried over to the following year. If the leave is granted for less than 6 months during a calendar year, the full vacation entitlement continues to exist. In the case of a leave of absence of more than 6 months, based on the legal concept of § 17 BEEG, the vacation entitlement is reduced by one twelfth for each full calendar month of the leave of absence. If only the daily working hours are reduced, nothing changes in the vacation entitlement. If the weekly working time is reduced, e.g. B. from a 5-day week to a 4-day week, the vacation entitlement is reduced accordingly, so that z. B. instead of an original holiday entitlement of 30 working days, there is now only a holiday entitlement of 24 working days. If an employee falls ill during a full time off, the periods of incapacity for work will be counted towards the time off, i.e. i.e. this is not extended by the incapacity for work.
Accident
A malfunction occurs when a credit balance is not used for full or partial exemption. The most important incidents are the premature termination of the employment relationship, the entry into retirement and the death of the employee. When the employment relationship is terminated, the credit balance is paid out to the employee. There is the option of transferring the credit to the subsequent employer (with his consent). A transfer to the DRV Bund is also possible, provided that the credit balance has reached € 19,110 (2020). The transfer takes place in accordance with § 3 No. 53 EStG tax and social security exempt and only in case of later payment social security contributions and taxes are to be paid. A transfer of the credit balance to the DRV Bund has tax advantages over a payout. According to Section 7f (2) SGB IV, an employee can also use the credit balance deposited with the DRV Bund for early retirement purposes outside of an employment relationship. If the credit balance has not been used up by retirement, the credit balance will also be paid out to the employee. In the event of death, the credit balance is paid out to the heirs.
For tax reasons, when concluding a credit agreement, full or partial early payment without exemption may only be agreed in the event of existential emergencies. However, a subsequent mutual termination of the credit balance agreement is permissible under labor law. In this respect, an incident has also occurred here.
In the event of an incident, the credit balance is taxable according to § 34 , § 34 EStG ( fifth rule ) and, without taking into account the contribution assessment limits, is to be contributed to the extent that it would have been subject to contributions without a credit balance agreement ( § 23b (2) or § 2a SGB IV - SV air).
social insurance
A credit does not have to be used as a priority in accordance with Section 96 (4) No. 3 SGB III in order to receive short-time work benefits.
If a credit is paid out at the end of an employment relationship and the employee becomes unemployed, the amount of the unemployment benefit is not reduced by a credit agreement, since according to Section 151 (2) No. 2 SGB III for the payment of contributions and the calculation of the amount of unemployment benefit is based on the wages that would have been achieved without the credit balance agreement.
If the credit balance is paid out to the employee upon termination of the employment relationship, it is considered income and assets within the meaning of § 11 , § 12 SGB II and is taken into account when calculating unemployment benefit II. To avoid crediting, the credit balance can be transferred to the German Federal Pension Insurance.
If, due to the credit balance agreement, the gross wages paid out in the savings phase for one year falls below the applicable annual wage limit, this leads to compulsory health insurance in the statutory health insurance, provided the employee is not yet 55 years old.
During the savings phase, according to Section 23 (1) and Section 23b (1) SGB IV, only the wages actually paid are paid for (exception: unemployment insurance, Section 151 (2) No. 2 SGB III). In the exemption phase, the remuneration paid out from the credit balance must then be contributed to the social security system, taking into account the contribution assessment limits. In a release phase, employees are insured despite being released from work.
Insolvency insurance
According to Section 7e SGB IV, a credit balance must be secured against the insolvency of the employer if the employer is capable of bankruptcy and the credit balance exceeds € 2,695 (2013). The insolvency insurance is the employee gem. To be communicated in writing according to § 7e Abs. 4 SGB IV. Trustee agreements (double trustee by administrative trust and security trust, CTA), bank guarantees and pledging of the credit balance by the employer to the employee are possible.
Investment
The income from the credit balance is due to the employee or the employer, depending on the contractual agreement. The amount of income depends on the investment . According to Section 7d (3) SGB IV, investments in shares or equity funds are permitted up to a level of 20%. If the credit balance is to be used for early retirement, a higher share quota is also permitted. A minimum return on the credit does not have to be promised. However, according to Section 7d (3) SGB IV, the employer must guarantee at least the amount of the contributions invested, including the employer's contribution to social security, at the time the credit is used (nominal value guarantee).
tax
In the savings phase, the remuneration added to the credit balance is not taxed if the employee has waived payment before the remuneration is due. According to Section 19 of the Income Tax Act (EStG), the saved wages are only taxable if the employee receives it from the credit balance during an exemption.
In the commercial balance sheet, provisions are to be made for credit balances as uncertain liabilities on the liabilities side in accordance with Section 249 of the German Commercial Code . The fixed assets are to be capitalized. In certain case constellations z. For example, with CTA models, the liabilities can be netted against the assets in accordance with Section 246 of the German Commercial Code.
In the tax balance sheet of the company, provisions must be made for the obligations from credit balances in accordance with Section 5 of the Income Tax Act. The fixed assets are to be capitalized in the company's balance sheet. Offsetting against the obligations from the credit balance is not possible in the tax balance sheet. The general tax accounting principles apply.
profitability
The period of exemption depends on several factors, namely the amount saved, the saving period, the interest on the credit balance and the salary trend. If 1% of the salary is added to a credit balance every month, with a salary increase of 2.5% after 40 years with an assumed interest rate of 3% or 4% or 5%, a full exemption of 5.6 or 6, 9 or 8.5 months with 100% continued payment of wages .
Employer subsidies
The employer can top up the employee's credit with his own funds. In this case, §§ 7b ff. SGB IV apply analogously. The employer's allowance can also be made subject to the condition precedent that the employee has completed a minimum period of employment with the company.
Others
Credit balances do not fall under the pension adjustment in the event of a divorce, but are probably included in the gain adjustment (a supreme court decision has not yet been made). A credit agreement does not reduce the income that is relevant for calculating the amount of maintenance obligations. In the credit balance agreement or in a works agreement or in a collective agreement, it is regularly stated that the unreduced wage (shadow wage) should be decisive for future wage increases.
It was noted as problematic that a ban on discrimination was necessary for those who “had already accumulated a lot of overtime” so that they would not be disadvantaged in the labor market.
literature
- Hanau / Veit, The new law of working time accounts, Beck-Verlag 2012 ISBN 9783406632235
- Dahl / Taras, double trust in the employer's insolvency, NJW-Spezial 2016, 21
- BMF letter of June 17, 2009 - IV C 5 - S 2332/07/0004 Federal Tax Gazette 2009 I S1286
- Implementing regulations of the umbrella organizations of social security circular of March 31, 2009.
Individual evidence
- ↑ Michael Dahl and Raul Taras, double trust in the insolvency of the employer, NJW-Spezial 2016, 21
- ↑ More time for everyone! Zeit online, April 24, 2015, accessed April 24, 2015 .
