Undisclosed Pension Receipt: Social Security Contribution Back Payments and Recourse Claims
In the social security tariff system, this is implemented by applying deduction code A15.
In recent months, an increasing number of cases of what may be described as a “failed pension deferral” have arisen in connection with this incentive. The typical scenario is as follows:
An employee who initially provided the employer with evidence of having deferred the statutory pension subsequently does in fact begin to draw the pension (e.g. for financial reasons), without informing the employer. Due to the lack of knowledge, payroll accounting continues to apply the reduced contribution rates until the health insurance institution becomes aware of the pension receipt (sometimes only after a considerable delay) and initiates a retroactive contribution assessment. As a result, the employer is required to correct the monthly contribution bases (mBGM) for the affected period and to pay the pension insurance contributions that were not previously remitted.
Against this background, two key questions arise from the employer’s perspective:
- Can employers protect themselves against such scenarios?
- If something nevertheless goes wrong and the social insurance institution demands additional contributions from the employer: can the employer recover the subsequently paid employee pension insurance contributions from the employee?
Question 1: Possible Preventive Measures Against “Failed Pension Deferrals”
If the halving of pension insurance contributions is to be applied to employees who have reached statutory retirement age, the employees concerned should be requested to provide evidence of non-receipt of the statutory pension (confirmation from the pension insurance institution).
At the same time, it is advisable to set this out in a written document, in which:
- the respective employee is expressly obliged to notify the employer without delay should he or she subsequently decide to claim the pension, and
- the employee is explicitly informed of the obligation to repay pension insurance contributions in such a case.
| For the employer’s own protection, it is recommended that this inquiry be repeated at least once per year, i.e. that the employee be asked again to confirm—supported by a confirmation from the pension insurance institution—that no pension is still being drawn. |
Question 2: Recourse Against the Employee in the Event of a “Failed Pension Deferral”
If the failure to withhold social security contributions is attributable to fault on the part of the employee (breach of the duty to notify the employer of the commencement of pension receipt), while no fault can be attributed to the employer, the employer may, in our view, claim reimbursement of the subsequently paid employee pension insurance contributions from the employee by way of damages (cf. Austrian Supreme Court (OGH) 24 April 2020, 8 ObA 66/19t).
Where the employee was expressly informed in advance by the employer of the potential social security back payment obligation in the event of pension receipt, good-faith consumption of the excessive net remuneration cannot be invoked (cf. OGH 21 December 2011, 9 ObA 119/11g).Frage 2: Regress gegenüber dem:der Mitarbeiter:in bei „verunglücktem Pensionsaufschub“?