The Ombudsman regularly receives complaints from clients who make payments into the second or third pillar towards the end of the year, which are only credited to the clients’ pension account in the new year. In such cases, the payments are not effective for the intended tax year. The consequence of this is that the tax bill for the corresponding tax year is higher, which can be painful due to progression and cannot always be corrected by payments in later years. The case law of the Federal Supreme Court is clear on this issue. The decisive factor as to whether a payment can be taken into account for the intended tax year is when it is credited to the pension account and not the date of the payment order or deposit at a bank. It is therefore advisable not to wait until the last few banking days of the tax year to make payments into pension accounts and, in view of the notoriously high workload at financial businesses at the end of the year, to allow a certain amount of reserve time. In any case, the cut-off times regularly communicated by the banks for accepting orders should be respected.

In her complaint to bank B, the client claimed that she had suffered a tax loss due to the delayed processing of the returned amount, which she calculated from the difference in the amounts of tax with and without taking into account the deductions not granted for the payment intended for the 2023 tax year. She argued that the payment was recognisable as a payment into pillar 3a and that it was notorious that such payments are time-critical due to their tax relevance.

In its reply to the client, bank B regretted that the booking could not be made on time in 2023 and apologised for the inconvenience caused to the client. However, it took the view that it was not guilty of any misconduct and rejected the client’s claim for compensation. It explained to her that the payment order had been executed punctually and in accordance with instructions on the first bank working day after it was received. It recognised that it had received the amount back from the recipient bank on the same day. The booking on her account had to be made manually. At the end of the year, a large number of transactions had to be processed with a partially reduced number of staff. Such a procedure therefore takes 2 – 3 days. It also mentioned that it communicates cut-off times in e-banking for time-critical payments at the end of the year. Orders for payments to a retirement savings account should have been issued to bank B by 20 December 2023 at the latest so that timely processing could still have been guaranteed. It drew the client’s attention to the fact that payments to a pillar 3a account can also be made in instalments throughout the year and do not have to be made as a total amount just a few days before the end of the year.

The client did not agree with the bank’s response and contacted the Ombudsman a second time. The legally qualified complainant denied knowledge of having received information from the bank in e-banking about the cut-off times for time-critical orders at the end of the year. She did not see the reversed booking in her e-banking access on Friday, 29 December 2023, and was therefore unable to ensure in good time that the amount could still be credited to a retirement savings account in 2023. According to information from a third bank, with which she also has a business relationship, it would have been possible to make a payment into an account of her pension foundation at the bank’s counter until midday and even in the afternoon of December 29, 2023, if she had been informed accordingly. The rejection procedure took a full four working days, which was in the client’s opinion too long. Even the processing time of 2 – 3 days mentioned by the bank was too long in connection with a pillar 3a payment. A bank must, according to the client, ensure that sufficient staff are available to process such orders, especially at the end of the year.

After taking note of the arguments presented by bank B and the client, the Ombudsman explained to the client in advance that his role was that of a neutral mediator and not a client advocate. Mediation presupposes that sufficiently convincing arguments are recognisable that point to misconduct on the part of the bank.

When first contacted, the client claimed that bank A should not have rejected the amount. It was in her view not sufficiently clear that the deadline of two days set by the pension foundation of bank A for processing an application to open a pillar 3a account referred to bank working days and not calendar days. Bank A’s pension foundation had already issued a written statement in which it made it clear to the client that if an opening application was submitted on Sunday, 24 December, it could not seriously assume that it would be processed on Christmas Day, 25 December, or on St Stephen’s Day, 26 December. Both are public holidays. The client’s application to open the account was processed on the first bank working day following the opening, 27 December 2023. The account was not yet open when the transfer was received during that day. The amount was therefore rejected. The opening was completed on the evening of 27 December 2023, one day earlier than communicated, but unfortunately too late to the be able to book the payment that had arrived earlier. The rejection was in line with the communicated conditions and therefore lawful. The pension foundation of Bank A rejected liability for the tax loss.

The Ombudsman explained to the client that he could understand these arguments and that mediation proceedings with bank A or its pension foundation were hopeless from the outset. With regard to any liability on the part of bank B, he would need to see their statement before he could comment on this.

He could understand the client’s frustration about the tax loss suffered. However, after being presented with the positions of both parties, he came to the conclusion that there was no misconduct on the part of Bank B that could give rise to liability. In his opinion, it is notorious that bottlenecks and longer processing times can occur in view of the large number of transactions to be processed at the end of the year and that the banks therefore communicate cut-off times that include certain reserves. He considered it unlikely that the information on cut-off times mentioned by bank B was not visible in the client’s e-banking system. The cut-off time referred to by the bank had in the case presented not been adhered to.

He also stated to the client that she had issued an ordinary payment order to bank B on Sunday, 24 December 2023. This was not comparable to the situation for which she had made enquiries at a third-party bank. There, it was presumably a payment at the counter for the same bank’s pension foundation. In her case, the payment first had to be processed between bank B and bank A and finally credited to the client’s pension account by bank A’s pension foundation. Such a process requires more time.

Orders for payments from bank to bank are normally processed on the day following the order. Even if she had already seen the reversed payment in her e-banking access on Friday, 29 December 2023, it would no longer have been possible to execute it in the same year, as the next bank working day at the bank’s location would have been Wednesday, 3 January 2024 (note: instant transfers were not yet available at that time).

In addition, the Ombudsman pointed out to the client that even if there had been a basis for liability in her case, this was limited to direct losses in the general terms and conditions of the specific bank. According to these, liability was limited to the loss of interest in the event that a payment order was not executed on time.

Finally, in the Ombudsman’s opinion, the client should have deducted from the loss calculated by her the taxes that on the withdrawal of the pillar 3a would one day be due .

For these reasons, the Ombudsman saw no basis for confronting the bank with the client’s claim for damages in a mediation proceeding and closed the case.