In the hearing of 12.12.2018 – B 12 R 15/18 R – the Federal Social Court reversed the judgment of the North Rhine Westphalia State Social Court of 30.08.2014 – L 8 R 822/14 – on the appeal of the defendant German pension insurance Westphalia and referred the matter back to the State Social Court for further hearing and decision. A final decision was not possible due to the absence of factual findings as to whether the plaintiff was not aware of its obligation to pay contributions pursuant to § 24 (2) SGB IV through no fault of his own.
This is based on the following facts:
The plaintiff, a limited liability company, operates a coach company with tour buses which, due to their individual equipment, enable a 24-hour stay in the bus. It employs in part permanently employed tour guides, in part these are also active on a fee basis. In its decision of 23.5.2011, the German pension insurance Westphalia set a supplementary claim for a total of € 54,303.03 including late payment surcharges of € 14,480.50 for a total of six tour guides for the period from 2006 to 2009.
In its judgement, the Regional Social Court ruled that the decision regarding the additional claim for the overall social insurance contribution was not to be passed from a material point of view. With regard to the collection of late payment surcharges, however, the plaintiff could refer to § 24 (2) SGB IV.
In this regard, the Federal Social Court determined once again that there was a criterion of fault of its own and that fault within the meaning of § 24 (2) SGB IV presupposed at least conditional intent. This follows from the systematics of the SGB IV and the purpose of the late payment surcharges.
The Higher Social Court found that the plaintiff’s managing director was not at fault at the time the contributions were due. However, the Federal Social Court instructed the Regional Social Court to clarify whether the managing director became aware of the duty to pay contributions at a later date or whether he was unaware of this through no fault of his own. The Federal Social Court stated at the hearing that surcharges for late payment are to be levied from the time when knowledge or ignorance through no fault of his own arose.
In the case of tax audits with an administrative ruling, it must in any case be examined whether and from when the surcharges for late payment were rightfully levied. At least conditional intent is necessary. This must be determined individually in relation to the specific circumstances of the individual case and the premium debtor in question; in case of doubt, the burden of determination lies with the insurance institution.