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10. Law and taxes

10. 1 in dealing with financial institutions

Consulting Protocols: As of January 1, 2010, the bank must always prepare a report after each investment consultation. It must state: duration and reason of the advice, personal situation and investment objectives of the client and the given recommendations of the bank.
No log must be created if
a) no consultation but only a mediation meeting takes place, so the customer buys without prior consultation
b) products are sold that are not covered by the Securities Trading Act, such as Daily allowances and time deposits.

The product information sheet:
since: 01.07.2011
to: bonds, shares, certificates, federal securities and Pfandbriefe
Scope: not more than 2 Din A4 pages
Content: nature and functioning of the financial product, risks, costs

Sales Compensation / Kickbacks / Commissions / Stock Charges / Management Fees / Stock Commissions This and similar is the merit of banks on the sale of investment-
called products.
For this there is a clear case law of the BGH that the banks are obliged to disclose these commissions to the customer. This applies to any type of commission in which a part flows back to the bank face down.
BGH reference XI ZR 308/09, judgment of 29.6.2010 and
BGH “XI ZR 191/10, Judgment of 9.3.2011
If this disclosure does not happen, it is a serious advisory error. This case-law benefits customers who, for quite different reasons, wish to reverse a securities transaction, e.g. because the plant has flopped altogether. If the disclosure of commissions is missing, they have very good chances in court.
Exception: This obligation to inform only applies to banks, not to freelance consultants.

(Source: Zahnärztl. Messungen vom 16.7.2011 S. 64-66)

usual commissions: (in%)
Bond funds: 3 – 5
Equity funds: 4 – 6.5
Certificates: 0.5 – 5
Capital life insurance: / annuity insurance: 1 – 5.5
closed real estate funds: 6 – 10
Ship funds: 8 – 15 (Source: “Investment for hard-working, p. 12)

Costs play an important role in life insurance, annuities, managed funds.
They often eat up the total return on these products and even push them into the loss zone.

A typical example was at the financial seminar of the KZV on 21.5.14, speaker Davor Horvat,
presented. A fund-linked pension insurance is analyzed. the AXA.
Assumed / forecast return p.a. average over the term: 6%
Closing and distribution costs (4% on 5 years, spread over the term) – 0.5
ongoing administrative expenses – 0.6
Investment costs – 0.1
Management fee and transaction costs of funds – 3.5
remaining return (actual costs are often even higher) 1.7%
– before taxes and inflation –
Conclusion: It is better to dispense with life and annuity / managed funds:
the costs eat up the return. One should rather act by oneself than others “let manage, so put money regularly and invest in bonds and shares.

1.Bundesverband Deutscher Banken, PO Box 040307, ​​10062 Berlin
(free arbitration with ombudsmen) www.bankenombudsmann.de
2.BAFIN (Federal Supervisory Authority for Financial Services Supervision)
Graurheindorfer Straße 108, 53117 Bonn
Further addresses of funds and insurance under mediation and ombudsman in the financial folder.

The arbitration procedure with ombudsman is free of charge and interrupts the statute of limitations.
The arbitration award is binding for the Bank up to a claim of 5000 €. For larger sums, it may insist on a legal clarification. The customer is always free to seek a judicial decision. (More in the ZM article on ombudsmen)

The deposit insurance relates to so-called demand deposits (checking accounts, overnight money, fixed deposit, savings account, savings letter)..
Securities deposits are not hedged, but this is not necessary because the bank only manages them. However, the contents of the WP portfolio are subject to issuer risk. If the issuer goes bankrupt, the security becomes worthless.
Also not hedged are bearer bonds (bonds, certificates.), Which the bank itself has issued.

The amount of hedge: (as of: 2012)
1. (legal regulation, enforceable)
Compensation scheme of German banks (EDB): 100,000 Ђ per customer at 100%
(Europe-wide regulation); joint account of spouses: up to 200,000 Ђ secured
Who is in it you learn under
Payment of the credit in insolvency case after 20 days at the latest, prescription after 5 years.
New EU law (in Germany valid from 3.7.15, EU-wide only from 2024): Payment after 7 working days at the latest, statute of limitations after 10 years.
Further improvements: Automatic refund (previously on request),
and: warranty extension to temporarily higher credit balances up to 500,000Ђ, for example from a home sale.
In this case, however, an application must still be made.

2. (voluntary, not enforceable)
Deposit Guarantee Fund of the Federal Association of German Banks
30 percent of the liable equity of the bank (in each case per customer), that is a lot (several million euros, at least Mio 1.5 million) who is in it you learn under
The so-called government guarantee (Merkel / Steinbrück of 5 October 2008) is not enforceable, but merely a political declaration of intent.

This regulation will continue until 2015, after which protection will gradually be reduced to 8.75% of the liable capital by 2025.

Commerzbank announces the following:
until 31.12.2014 30% 8,576,813,000
from 1.1.2015 20% 5.717.875.333
from 1.1.2020 15% 4.288.406.500
from 1.1.2025 8.75% 2.501.570.458

Savings banks and Volksbanks each have their own security systems according to the solidarity principle (institutional liability). In their previous form, these were unlimited. –
If one savings bank or Volksbank goes bad, then all the others jump in.
This institutional liability is now to be changed under the new EU law. Then, too, the 100,000 euro limit per customer and bank applies.

New approach to bank rescue:
At the height of the 2008 financial crisis, A.Merkel had promised that “all sight deposits would be safe. The taxpayer helped the banks. Neither owners (shareholders) nor creditors (holders of bonds) or savers (who are basically also creditors) were taken into liability.
This should change in the future. Federal Finance Minister Schäuble has set the goal: “In the future, banks must be able to be handled in the same way as other companies (see Die Welt, 15.4.2013)..
The new approach has been partially tested in the Cyprus rescue. For the first time savers with deposits of more than 100,000Ђ had to give up a considerable part of their money. This set a precedent on 26 March 2013: Savings deposits are no longer safe. The access order, according to Commissioner Michel Barnier (Handelsblatt 15.4.13):

Owner (= shareholders)
Creditors (= bondholders)
Savers with deposits over 100,000
Home state of bank bonds
ESM (European rescue package) with deductible of the home state

Conclusion: Sight deposits (checking accounts, savings accounts, daily and fixed deposits) are no longer safe, or only as secure as the credit rating of the country where the bank has its headquarters. Since the 100,000-euro-Kleinsparergrenze per Institut applies, one should distribute his fortune over several banks.
Deposits with bonds and shares are safer because: Deposits are like the contents of a locker as a pure repository. The content is special assets. The participation of the creditors does not work here. (see article “Cyprus in the financial folder). Of course, it may not just be the stocks and bonds of a bank in bankruptcy.

For skeptics a joke on the edge: “The only deposit insurance that works are the adhesive wings of the Always Ultra
. And if we have done everything right with the investment and earns money, then comes the Treasury and requires deduction tax.

10.3 Key points on international inheritance law

Center of Life (new EU Regulation from 2015)
Who lives abroad or often stays there, must know the following:
From the cut-off date 17.08.2015, in principle, i. unless otherwise provided in the will, the law of the country where the deceased last had his habitual residence.
This residence principle is intended to make heirs in Europe simpler and more uniform. The nationality of the testator is irrelevant, just as the assets, savings accounts, deposits, real estate, etc. are not. Decisive are the
Living conditions of the testator, duration and regularity of the stay abroad.

Choice of law clause: Deviating from this, however, the deceased may insert a choice of law clause in the will. Here he can choose the law of inheritance of the state of which he is a national.As a German in the German inheritance law i.a. is better informed and also has better access to counseling offers, it is m.E. to recommend the German inheritance law.

10.4 Withholding tax (KeSt = capital gains tax)

The final withholding tax on interest and capital gains has been charged in Germany since 1.1.2009.
It is a withholding tax, i. It is deducted directly from the source, ie banks, savings banks and fund companies.
Withholding tax is generally 25%.
In the case of belonging to a religious community, but it is lowered to 24.51%.
In addition to the tax payable:
5.5% solidarity surcharge on the tax, not a.d. investment income
8% church tax (in Bavaria + Baden-Württemberg, otherwise 9%) “” “” “”
Maximum tax burden summa summarum 27.98%.

The final withholding tax is “favorable, because it prefers income from capital assets against income from work. The tax rates on earned income are higher (top tax rate currently 45%). – If the domicile is abroad, there is no flat-rate tax.

The withholding tax could, however, be an obsolete model.
The reason for this is an agreement from 2014 on the international tax information exchange, to which more than 60 states joined by 2015, tax havens such as Switzerland, Liechenstein and Singapore. The preference for income from capital assets will hardly be justified from 2017, when the agreement takes effect. In the ministry of Wolfgang Schäuble there are considerations then to return to taxation on the basis of the individual tax rate.

Loss pots:
If you have earmarked losses that can be offset against profits, you save taxes.
If losses are realized, they come in a so-called loss pot. There are only two:
Loss pot 1: Losses from (individual) shares:
Single stock gains can only be offset against losses on individual stocks.
Loss pot 2: other losses
These losses can be offset against all other winnings (ie with interest, profits from funds, certificates, etc.).

It is beneficial if losses occur because they are not in the pot " individual stocks" , but in the pot “other" come because here the billing options are more diverse.
Sometimes you can influence at this point. Examples:

Let’s assume that a stock loan close to maturity can be expected to bring loss. Now there are two options:
a) sell ahead of time
Posting losses on “other, as it is a bond
this is the cheaper option
b) hold to maturity
Shares are redeemed because the barrier falls below the underlying
has been. The losses are booked in the pot “single stocks.
This is the less favorable variant, because later only offsetting with profits from single stocks
is possible.
Loss carried forward:
The contents of the loss pots are automatically transferred by the bank into the following calendar year.
But you can until 15.Dec. apply for a loss certificate from the bank.
This removes the losses from the automatic transfer process.
They can then be activated as part of the tax return, e.g. for offsetting against profits at other banks or other foreign banks.

Cost of investment:
Custody fees, travel expenses for the Annual General Meeting, etc..
are compensated with the saver lump sum (801 Ђ or for married 1602 Ђ).

Legal notice on the final withholding tax: (Source: € aS No. 10/2015, pages 12 and 59)
Physical gold (bullion, coins, jewelery) enjoys a tax privilege. Who sells after a one-year speculation period, collects the profits tax-free. This privilege was created to prevent the migration of gold trading abroad.
ETCs, gold bonds and gold certificates (such as the popular Xetra gold), which certify the right to cash into physical gold, are tax-equivalent to physical gold. There are now three identical judgments. The Treasury has appealed, the matter lies in the final decision of the BFH (Ref. VIII R 19/14 and VIII R 35/14).

Derecognition of securities with stock market value zero
Securities may reach zero market value, in particular shares in the event of insolvency of the Company or warrants, if the Underlying develops differently than expected. Banks then have the questionable practice of simply betting out the WP as worthless, as if everyone could go to the bank branch and take supposedly worthless items with them.
The Treasury sees in such a compulsory purchase no sales for sale and does not recognize the losses, which is why the banks do not book them in the loss pots. The Finanzgericht Rheinland-Pfalz ruled that the forced confiscation involved losses that are to be taken into account. Here too the final decision lies with the BFH (Az. IX R 57/13).

International aspects: (see article in € .a.S. 30.5.15 p.76-79, in the investment folder under foreign countries / investment income)
In Germany, the so-called world income principle applies, meaning: who lives here pays also here
Taxes on all its investments, even if the income comes from foreign stocks or bonds.
Securities income from a domestic deposit is automatically debited by the bank with the final withholding tax; Income from a foreign deposit, however, must be settled via the income tax return. Income is converted into euros using the exchange rate of the maturity date. Conflicts arise when withholding tax is already withheld abroad.

Up to max. 15%, the foreign withholding tax is automatically credited by the German custodian bank to the German withholding tax. In addition, paid tax must be repeated with initiative on a bureaucratic way.
This way is comparatively easy for the countries: USA, GB, Switzerland;
cumbersome for Italy, Spain, France.

USA: the Americans only keep the reduced rate of 15% ,
the remaining 10% is paid in Germany
Prerequisite: the custodian bank has the status “qualified intermediary
GB: Since 1973 no withholding tax for foreigners
it is simply the German withholding tax due
CH: 35% withholding tax is withheld by the Swiss
15% of it will be in Germany. Immediately counted
the remaining 20% ​​you have to get back by form
Further details about the individual countries in the o.g. items.

From the wealth of investment opportunities I would like to highlight as particularly probat:

Subordinated bonds with good credit ratings (see 2.2)
Fund savings plans (cost-average-effect) (see 3.3)
Express Certificates (see 6.1)
Inline Warrants (see 8.1)

With these products have been largely reliable returns in recent years
5 and 15% per annum achievable.

Let’s take a look at the Brazilian Real.

Mid-2011: 1 euro = about 2.25 real
Middle of 2015. 1 euro = approx. 3.50 real
July 2015 1 euro = approx. 3.70 real

In other words, in 4 years, the real has suffered over 50% depreciation against the euro.
Over the past 4 years, a Brazilian investor who invests in euros would have
alone achieved currency gains of over 50%, or over 10% per year. All rate hikes by the Brazilian central bank have not changed that. Even the smoldering Greek crisis in Europe did not significantly affect the euro. Since the real tends to be weak overall, investing in euros for Brazilian investors is therefore quite interesting. And: Anyone who lives in Brazil pays no withholding tax in Germany.

For the Brazilian investor, the capital investment in Europe is as follows:
In recent years were achievable in Europe.
5 – 15% of investments with moderate risk
10% from exchange rate gains BRL – Euro
Of course, the returns are not guaranteed for the future, because they depend on the foreign exchange markets and the stock market development. – But there are interesting opportunities in Europe.

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