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BGE 122 V 394

122 V 394 60th judgment of November 19, 1996 i.S. Social Insurance Institution of the Canton of St. Gallen against M. and G., heirs of L. and Insurance Court of the Canton of St. Gallen Regeste Art. 2 Para. 1, Art. 3 Para. 1 lit. b and f, Art. 5 ELG, Art 17 Para. 1 and 4 ELV, Art. 745 ff. ZGB. How is the usufruct legally to be recorded, which the EL recipient or contact person has allowed himself to be granted when assigning his property? - A consideration is still to be considered appropriate if the difference between the service and the consideration is in a range of around 10% of the service. - It is not permitted to count the capitalized value of the usufruct as property. - There is no legal basis for crediting a monetary compensation for the consumption of assets no longer possible after the usufruct has been granted in the EL calculation. Facts A.- ​​L., born in 1909, died on June 7, 1996, had been receiving supplementary benefits since January 1, 1990 (at that time CHF 82 per month). His house was initially used at the federal tax value of CHF 118,800 and from January 1, 1992 at the now applicable cantonal tax value of CHF 99,000, which from January 1, 1992 was a supplementary benefit (EL) of CHF 218 per month. Because the compensation office of the canton of St. Gallen after the issue of the relevant order (dated January 6, 1992) became aware that L. had his property (which on October 3, 1991 had an official market value [= cantonal tax value] of CHF 145 ') 000 .-- had been re-estimated) on November 1, 1991 gave away to his son G. (this in return for the granting of a lifelong and free usufruct for himself and his wife M; donation agreement of October 25, 1991), took it on the basis a recalculation of this new value, which from February 1, 1992 resulted in an EL of CHF 5 per month (undisputed ruling of February 4, 1992). On the occasion of the 1993 revision, the compensation office used the property again at a value of CHF 145,000; With regard to changes in other positions, a monthly EL of CHF 39 resulted from January 1, 1993 (ruling of January 21, 1993). B.- L. appealed against the order of January 21, 1993. He asked for a higher EL and complained that it was incomprehensible that the property transferred to the son over a year ago was still counted as a property. With the decision of October 21/18. On November 1st, 1993, the insurance court of the canton of St. Gallen partially approved the complaint, revoking the cash disposition, stating that L. was entitled to an EL of CHF 287 per month from January 1, 1993. The court denied a waiver of assets by considering the capitalized usufructuary value (CHF 105,924 .--), which is 73% of the official appraised value of the property, as an appropriate consideration, as determined by the Stauffer / Schaetzle cash value tables. In the meantime, the consideration L. received in the form of the capitalized value of this usufruct must be credited as assets; The decisive factor is the capitalized taxable rental value. Furthermore, the rental value must be credited as income and, in return, this rental value must be allowed as a deduction on the expenditure side. If, in this sense, only the consideration of CHF 105,924 is taken into account instead of the property value of CHF 145,000, then the consumption of assets on the income side is reduced from CHF 10,500 to CHF 6593 .--. In the opinion of the lower court, the unmet need increases by CHF 3907 .-- to CHF 44,023 .--, which results in an EL of CHF 287 .-- per month. C.- The compensation office (from January 1, 1995: Social Insurance Institution) of the canton of St. Gallen files an administrative court complaint with the application for the annulment of the lower court decision and for the matter to be referred back to the administration for additional clarification of the facts and a new ruling. As a justification, she first stated that a consideration of only 73% would mean a waiver. Then, based on Art. 17 Para. 4 ELV, the market value must be assumed when assessing performance and consideration. In the absence of a legal basis, capitalization of the usufruct and crediting it as assets is not permitted. On the other hand, it should not be inferred from the first-instance negation of a waiver that there are no longer any creditable assets. Because by renouncing ownership of the property, L. "also renounced the need to additionally finance his livelihood through the consumption of assets". The chargeable waiver therefore consists not only of the difference between the market value of the property and the (lower) capitalized value of the usufruct, but "additionally also in the capital value of the (no longer) consumable option". To determine this capital value, "the current consumption of assets (1/10 of the commercial value of the property) must be capitalized on the basis of the average life expectancy of the respondent's wife". The market value of the property (CHF 217,500; = 150% of the official tax value) must be increased by the capitalized asset consumption of CHF 172,175, which corresponds to a total value of the performance of L. of CHF 389 '675 .-- make out. The consideration to be determined in more detail (capitalized market rental value) is to be deducted from this. L. could not be heard. The Federal Social Insurance Office (FSIO) commented on the questions raised by the Compensation Office regarding the offsetting of the capitalized value of the usufruct granted upon the assignment of the property as assets and the offsetting of the capitalized value of the depletion of assets as waiver assets. Excerpt from the considerations: The Federal Insurance Court is considering: Recital 1 1.- As a subject of contestation and dispute, the claim to EL from January 1, 1993 is to be considered, in accordance with the order of January 21, 1993. It is not up for discussion whether the social security institution has correctly calculated the EL from February 1992 by - knowing the donation - had treated the property as an asset as if L. had still been the owner at the time. Recital 2 2.- According to Art. 2 Para. 1 and 5 ELG, Swiss citizens living in Switzerland who are entitled to a pension or helplessness allowance from old-age and survivors' insurance or at least half a pension from disability insurance are entitled to supplementary benefits, insofar as they are creditable Annual income does not reach a certain limit. The annual supplementary benefit corresponds to the difference between the relevant income limit and the creditable annual income (Art. 5 Para. 1 ELG). The creditable income is calculated according to the provisions of Art. 3 ff. ELG. According to this, income and assets that have been waived are to be counted as income (Art. 3 Para. 1 lit. f ELG in the version applicable here, valid from 1987). With this new regulation, which aims to prevent abuse, a uniform and fair solution should be made possible, in that the difficult examination of the question of whether or not the thought of a supplementary benefit actually played a role in renouncing income and assets is no longer necessary (BGE 120 V 12 adult 1, 117 V 155 adult 2a with references). Recital 3 3.- According to the amended version of Art. 17 ELV, the principles of direct cantonal tax have primarily been applicable for the valuation of assets since 1992 (Art. 17 Para. 1 ELV). As a rule, the cantonal tax value is decisive for real estate. Deviating from this, Paragraph 4 of Art. 17 ELV stipulates that the (regularly significantly higher) market value applies if the property is used by the recipient or a person included in the ELV calculation "not for their own residential purposes". a) The lower court does not comment on the applicability of Art. 17 Para. 1 or 4 ELV. It is limited to the indication that the valuation of both the property (= performance) and the usufruct (= consideration) must be made on the same basis. The complaining social insurance institution rightly agrees with this; Without further justification, however, it takes the view in the administrative court complaint that in this case the "market value", i.e. the market value within the meaning of Art. 17 Para. 4 ELV must be assumed. In the prior consultation, it stated that Article 17 (4) ELV aims to give preference to owner-occupied property over other types of property. However, this purpose can no longer be achieved if a landowner gives away his property. In this case, he no longer needs the benefit under Art. 17 Para. 4 ELV; L. should therefore be treated in the same way as if he had sold the property at the market price. b) The Social Insurance Institution overlooks the fact that the EL Ordinance does not differentiate between asset valuation and whether assets actually still exist or whether they have been assigned to third parties (for example through normal sale or donation). Rather, Art. 17 ELV is applicable in practice in both cases (cf. BGE 120 V 184 rec. 4b, 113 V 192 rec. 4c / aa). Accordingly, the question of the applicability of paragraph 1 or 4 is answered according to whether or not the property was being used by the tenant for his own residential purposes at the time of the change of ownership. The term "own" in Art. 17 Para. 4 ELV can therefore not be understood in the sense of "ownership" of the property. Rather, it refers - as an attributive adjective - to the noun "residential purpose" and can only mean that the recipient (or another person included in the EL calculation) lives in the property himself (nothing else follows from the French and Italian versions the provision in question). Accordingly, Art. 17 Para. 4 ELV only applies if the property belonging to the tenant is not inhabited by himself (or a person to be taken into account in the EL calculation) (BGE 120 V 185 Rec. 4c). It is therefore necessary to adhere to the previous case law, at least as long as the ordinance giver does not issue a special rule on the assessment of the ability to waive the reduction according to Art. 17a ELV, in particular of real estate. c) L. lived in the property in question with his wife for decades, from November 1, 1991 due to the granted usufruct. As a result, there is no reason not to value the property in accordance with the general rule of Art. 17 Para. 1 ELV on the basis of the cantonal tax value. This is also supported by the following consideration: If L. had not given the property away and had consequently still been the owner, it would be clear that Art. 17 Para. 1 ELV would apply. The fact that he was no longer the owner after the assignment does not change this; because, as mentioned, Art. 17 ELV does not provide a basis for treating assigned assets (possibly by donation) differently than assets that are still available. It is undisputed that the cantonal tax value of the property at the time of the change of ownership was CHF 145,000. This is the value of L.'s performance. Recital 4 4.- Thus the question arises as to how high the son's consideration should be classified. Since the property is lien-free, the granting of lifelong and free usufruct represents the only consideration. to assume the granting of usufruct; this rental value is then to be capitalized (BGE 120 V 186 adult 4e). If - as I said - the cantonal tax value is decisive for the assessment of the service, then the cantonal tax law approach must also be used for the rental value (as can also be seen from Art. 12 Para. 1 ELV). According to the official estimate of October 3, 1991, this amounted to CHF 10,920 at the time of the change of ownership. b) Unlike in ZAK 1988 p. 195 recitals 4c / bb - and also in contrast to the procedure of the social insurance institute described as correct by the previous instance - this rental value is not to be capitalized according to STAUFFER / SCHAETZLE, but according to the more recent and since then constant jurisprudence (BGE 120 V 186 rec. 4e; also RUMO-JUNGO, Commentary on ELG, p. 44) according to the capitalization tables of the Federal Tax Administration. If the usufruct is available to both spouses, the higher of the two values ​​is decisive which results from the application of the conversion factor for the man and the conversion factor for the woman (unpublished judgment F. of July 28, 1993). At the time of the change of hand, L. was 82 and his wife was 76 years old. According to the table that has been valid since 1991 and is applicable here (AHI 1994 p. 17) results in a capitalization factor of 7.97 (1000 / 125.42) for L. and 11.92 (1000 / 83.84) for the wife. The capitalized value of the usufruct is CHF 87,033 (CHF 10,920 x 7.97) for L. and CHF 130,167 (CHF 10,920) for his wife .-- x 11.92). The relevant value of the consideration thus amounts to CHF 130,167. Recital 5 5.- a) The lower court qualifies a consideration of 73% of the value of the service "still as adequate by judgment". The Social Insurance Institution replies that there is only room for discretion where the value of the service and consideration cannot be determined precisely to the franc. In the case of a property or in the case of usufruct, the opposite is the case. Accordingly, the Social Insurance Institution is of the opinion that there is a waiver for every difference between performance and (lower) consideration. The FSIO, for its part, advocates a certain leeway when it states that the consideration must make up at least 90% of the service in order to be assessed as appropriate. b) According to the above calculations, the purchaser's consideration amounts to CHF 130'167 .-- 89.7% (or 90% rounded up) of the seller's performance of CHF 145'000 .--. It can be described as appropriate with the FSIO. If practice demands an "appropriate" ratio so that the EL recipient or contact can avoid the accusation of waiver, this does not mean an exact offsetting of service and consideration in terms of francs. In addition, the social security institution fails to recognize that the appraisal of a property and the usufruct capitalization (which must be based on the rental value dependent on the appraised value) are associated with certain inaccuracies. It is true that results can be determined "exactly to the franc". With regard to the appropriateness or inappropriateness of the relationship between performance and consideration, nothing can be derived from such (seemingly) exact figures. For this reason, consideration is still to be considered appropriate if it is within a range of around 10% of the performance. If, according to what has been said, a waiver is to be denied in casu, then, in accordance with practice, the crediting of a waiver is not applicable, as is the consideration of a hypothetical yield and consumption. Recital 6 6.- It remains to be checked how, when calculating the current EL, the usufruct is to be taken into account, which L. had been granted with the assignment of the property. a) Usufruct is the comprehensive (real) right of use and use of a third-party asset. The usufructuary has full enjoyment of the foreign thing. However, he does not become their owner because he may use and enjoy them, but not legally or actually dispose of them (Art. 745 ff. ZGB; ZAK 1989 p. 473 ff .; TUOR / SCHNYDER / SCHMID, Das Schweizerisches Zivilgesetzbuch, 11 . Ed., Zurich 1995, p. 787 ff.). Therefore, in principle, an asset with usufruct cannot be credited to the usufructuary as an asset (cf. ZAK 1989 p. 474 with reference to margin no. 2108 of the guidance on EL to AHV and IV [WEL] as well as BGE 110 V 21 Rec. 3 and ZAK 1988 p. 255 rec. 2b). Neither can such an asset be taken into account by the owner as an asset (margin no. 2108 WEL), because otherwise income would be taken into account via the consumption of assets, which the owner cannot accrue to the owner in view of the rights to which the usufructuary is entitled. However, the usufruct contains an economic value for the usufructuary in that he receives a service that he would have to buy with other means without usufruct. For this reason, the income from the usufruct is to be counted as income in the EL calculation. If a property is usufructed, its rental value (in accordance with the principles of direct cantonal tax; Art. 12 ELV) must be recorded as income. b) The lower court is of the opinion, however, that in addition to the rental value of the property used, the capitalized value of the usufruct should also be counted as assets, "although usufructuary assets are otherwise generally not counted as assets in the EL assessment". It refers to margin no. 2108 WEL. According to this, assets on which there is usufruct are not credited either to the owner or to the usufructuary; "We reserve the right to waivers".The complaining social insurance institution initially sees a contradiction in the arguments of the lower court: If the latter denies a waiver, it does not apply, citing margin no. 2108 WEL assets to be taken into account. The Social Insurance Institution then objects that there is no legal basis for counting the capitalized value of the usufruct as property. The opinion of the Social Insurance Agency is correct. As mentioned, the usufructuary may neither legally nor actually dispose of the usufructuary assets. And because it only represents "a kind of theoretical property", the capitalized value of the usufruct cannot be disposed of either. The FSIO therefore correctly states that the capital value of a usufruct does not at all correspond to the EL-legal definition of assets. This means that they are not counted as assets under either b or f of Article 3 (1) ELG. Because even as a waiver, only what corresponds to the concept of wealth can be considered. The crediting of the net present value of the usufruct is therefore out of the question regardless of whether the EL recipient has come to usufruct through the old inheritance law (before 1988) or whether he considers the usufruct in the context of an assignment of the property to be adequate or as a mere partial consideration. Therefore, in the present case, the net present value of the usufruct could not be taken into account even if a (partial) waiver of assets were to be assumed. It should therefore be noted that, contrary to the previous instance, it is not permissible to count the capitalized value of the usufruct as property. Logically, based on previous practice, only the annual value of the usufruct is to be included as income in the EL invoice, namely the rental value calculated on the current property value according to Art. 12 ELV (unpublished judgment W. of March 23 1992). Recital 7 7.- a) In the opinion of the Social Insurance Institution and the FSIO, L. had not only given ownership of the property by assigning the property, "but also renounced the need to finance his livelihood additionally through the consumption of assets". Both are of the opinion that the income component of the consumption of assets should be recorded under EL law if, according to the granting of a usufruct or a right of residence in return, assets are omitted from the EL invoice. While the social security institution sees the solution in the fact that the current consumption of assets (1/10 [cf. Art. 3 para. 1 lit. b ELG] of the commercial value) is capitalized and added to the value of the property, the FSIO suggests granting the Usufruct as consideration without an asset and thus the full value of the property (possibly reduced by the mortgage taken over by the purchaser) as a waiver. b) So far, when determining the service, case law has always only assumed the tax value of a property, which is relevant according to Art. 17 ELV, and on the other hand has taken into account the assumption of mortgages and the granting of residential rights or usufructs as consideration (BGE 113 V 190; ZAK 1977 p. 235 rec. 3b, 1967 p. 560; unpublished judgments F. of July 28, 1993, S. of July 15, 1993, W. of March 23, 1992, and G. of August 17, 1989). On the other hand, it has never seen it as an act of waiver if, with the granting of usufruct or a right of residence, the consumption of assets corresponding to this consideration ceases to be in the EL invoice. There is no reason to change the previous case law and in future to accept a waiver within the meaning of Article 3 (1) (f) ELG in the cases described. Apart from the fact that it would amount to a capitalization of waiver income and its crediting as waiver assets (the question of such a procedure has been left open in the case of waiver of maintenance contributions; unpublished judgment B. of March 20, 1995), the solution of the social security institution does not come about Considered because the assessment of the service would clearly have to deviate from the applicable tax value according to Art. 17 ELV and would lead to an absolutely unrealistic property value by assuming a cantonal tax value of CHF 145,000 .-- from the total value of the property CHF 389,675 would have to be assumed, ie a far higher value than if the property had not been assigned at all. On the other hand, the fact that the property value according to Art. 17 ELV is more or less significantly reduced by granting usufruct or a right of residence according to the age of the entitled persons and that in this respect an economically relevant consideration by the purchaser exists which speaks against the proposal of the FSIO in the context of the assessment of a waiver (comparison of the service with the consideration) cannot be ignored. In view of the applicable Art. 17 ELV, there is therefore no legal basis for considering a monetary compensation for the consumption of assets that can no longer be taken into account in the EL calculation after the usufruct has been granted. Recital 8 8.- In summary, in the present case it results that an adequate relationship between the performance of L. and the consideration in the form of usufruct is to be affirmed and consequently a waiver of assets is to be denied that the rental value of the property corresponding to the current property value as Income is to be taken into account, and that - which is undisputed - on the expenditure side, in addition to the rent deduction, a deduction for the building maintenance costs to be borne by L. (Art. 16 ELV) is to be granted. The Social Insurance Institution will therefore have to recalculate the EL in line with the considerations.