Salary waiver – connection with early retirement – no immediately accruing salary
are recognized for tax purposes when they accrue to the recipient. Current wages are regularly considered to be received in the calendar year in which the wage payment period (usually the month) ends. The prerequisite for taxation, however, is that the employee has actually received the salary and is able to dispose of it economically. If the employer and the employee agree that wages due to the employee in the future will not be paid out immediately but will be allocated to a credit account or working time account from which remuneration is to be paid in a later release phase, this does not generally lead to an inflow (which is immediately taxable). Only the subsequent payment of the credit during the exemption period triggers the inflow of wages and thus taxation.
The Federal Fiscal Court
has now ruled that this also applies if a (third-party) managing director waives payment of current remuneration (in the case in dispute, 6,000 euros per month) and the employer (GmbH) finances future salary payments from this salary waiver during a later release phase for the purpose of the managing director’s early retirement
In the opinion of the court, the additions to the time value account do not constitute currently accruing wages. The employee had no right to demand payment of the value credit account, nor could he dispose of the credits in any other way.
The Federal Fiscal Court expressly points out that the (favorable) tax treatment of corresponding time value models – contrary to previous administrative practice10 – applies not only to “normal” employees, but also to third-party managing directors of a GmbH.
On the other hand, it should be noted,
that in the case of controlling shareholders of a corporation, it is assumed that they can already dispose of the remuneration when it becomes due and that they have thus received corresponding income.
(Further comments & information on this can be found in our information letter 08/2018 under item 1.)