In excess of debt, the transfer of the real estate by the delinquent to the person with a special relationship to the sale of the real estate constitutes a fraudulent act

The debtor's transfer of real estate to a related party in excess of his/her obligations is a fraudulent act.

Article 30 of the National Tax Collection Act Revocation

2017 Ghana 13628 Revocation of Fraudulent Act

Korea

Yellow AA

Pleadings without Oral Proceedings

January 9, 2018

1. The sales contract concluded on March 28, 2017 between the defendant and the non-party BB steel company is revoked.

2. The Defendant shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed on March 30, 2017 under the receipt No. 00000, with respect to the real estate listed in the [Attachment 1] List to Nonparty BB Steel Co., Ltd.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Indication of claim;

annex 2. The reasons for the claim are as shown in annex 2.

2. Grounds for recognition;

Judgment without Oral Pleading (Articles 208(3)1 and 257 of the Civil Procedure Act)

2

Cheong-gu Office

1. The sales contract was revoked on March 28, 2017, which was concluded between the Defendant and the Nonparty Co., Ltd. with respect to the DD, EE Ri 113-2, and two parcels of land operation between the Defendant and the Nonparty Co., Ltd.

2. The Defendant fulfilled the procedure for registration of cancellation of ownership transfer registration, which was completed on March 30, 2017 as the receipt No. 16534, with respect to the building in which DD, ES Ri 113-2 and 2 lots of land were operated, to the non-party BB Steel Co., Ltd.

3. The costs of lawsuit shall be borne by the defendant.

I request a judgment of "."

Cheongwon of the Gu

1. The Plaintiff’s taxation claim against Nonparty BB Steel Co., Ltd. (the existence of the secured claim)

A. The non-party BB Steel Co., Ltd. (hereinafter referred to as "BB Steel Co., Ltd.") was investigated by the tax investigation from February 8, 2017 to April 7, 2017, and confirmed the revenue amount related to the borrowed account omitted at the time of filing a corporate tax return for 2014 and 2015, and was notified of KRW 968,00,000 of the corporate tax and value-added tax on June 1, 2017. In addition, even though a revised return on revised corporate tax for 2016 was filed, it was notified of KRW 94,00,000 of the corporate tax on July 3, 2017 due to the failure to pay the tax amount. However, the delinquent BB Steel Co., Ltd. did not pay the tax amount up to the date, and thus, the total amount of delinquent tax including additional dues is verified to KRW 1,18,165,80,00 of the corporate tax report (see each subparagraph 12).

Table 1, Tax Claim Details (No. 31, 2017) (unit: Won) on Non-Party BB Steel

Reversion

Items of Taxation

Liability for Tax Payment

abstract date of establishment

Liability for Tax Payment

Specific date of establishment

Amount in arrears

Principal Tax

Additional Dues

2014

Corporate Tax

December 31, 2014

6.01. 201

180,271,700

171,035,790

9,235,910

2015

Corporate Tax

December 31, 2015

6.01. 201

340,533,720

323,087,030

17,446,690

2016

Corporate Tax

December 31, 2016

2017.07.03

97,894,420

93,948,590

3,945,830

‘14.2 Initials

Value-added Tax

December 31, 2014

6.01. 201

103,005,830

97,728,500

5,277,330

‘15.1 Initials

Value-added Tax

15.06.30

6.01. 201

19,216,870

13,109,00

6,107,870

‘15.2 Initials

Value-added Tax

December 31, 2015

6.01. 201

109,198,610

103,604,010

5,594,600

'16.1 term

Value-added Tax

16.06.30

6.01. 201

168,044,700

159,435,210

8,609,490

guidance.

1,118,165,850

1,061,948,130

56,217,720

B. Although it is required that a claim that can be protected by the obligee's right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis for the establishment of the claim, and that the claim is established by the near future legal relationship, and where the probability is realized in the near future, the claim may also become the preserved claim of the obligee's right of revocation (see Supreme Court Decision 2000Da64038, Nov. 26, 2002).

C. Such a legal principle also applies to a tax claim. Therefore, even if there was no specific decision of correction, etc. at the time of a fraudulent act, there was a basic legal relationship as to the occurrence of a tax claim, and if a tax claim was established specifically through a series of procedures, such as the actual decision of correction, etc., under a highly probable condition that a claim may be established in the near future, such tax claim can be the preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007).

D. A taxation claim is naturally established under the law when the taxation requirements under the tax law are satisfied. Article 21(1) of the Framework Act on National Taxes establishes an abstract obligation to pay corporate tax and value-added tax at the end of the taxable period, and Article 22(1) of the Framework Act on National Taxes provides that a national tax shall be determined according to the procedures under the relevant tax law.

E. According to the above relevant Acts and subordinate statutes, the Plaintiff’s tax claim against BB steel, a delinquent corporation, is established on the date of abstract establishment of the tax liability under the table 1, and the tax liability is established on the date of specific establishment of the tax liability, and thus, the entire amount of the instant tax claim can be recognized as the preserved claim for revocation of fraudulent act. Meanwhile, the amount of the preserved claim is included in the additional charges incurred from the time of the completion of pleadings after the fraudulent act until the conclusion of fact-finding proceedings (see Supreme Court Decision 2006Da66753, Jun. 29, 2007).

2. The intention to commit fraudulent acts and to injure himself;

A. On March 28, 2017, BB Steel Co., Ltd. entered into a contract for the sale and purchase of buildings in operation of the building for non-party 113-2 and non-party 2 lots (hereinafter referred to as "the real estate of this case") with the defendant YA, and completed the registration of ownership transfer in the future of the defendant YA on March 30, 2017 (see the registry of the real estate of this case, e.g., Evidence A No. 4).

B. At the time of the above sales contract, BB Steel Co., Ltd. was in excess of the debt amounting to KRW 456,789,000 for active property, KRW 1,160,000 for small property, and KRW 1,60,000 for small property (see, e.g., a copy of the real estate register, KRW 5-2 standard market price and calculation basis for evidence No. 5-12, respectively) as shown in the following table 2.

Table 2. On March 28, 2017, the date of fraudulent act;

Active Property

Petty Property

(Amount of creation of a collateral security)

Net Assets

Jinay

Location of real estate

Standard Market Price

1

D. D. EE Ri 113-2, Gyeongbuk-si, Gyeongbuk-do

43,362,00

-

43,362,00

2

In Gyeongbuk-do, D. D. EE Ri 113-1

80,757,000

60,000,000

(G Bank)

3

In Gyeongbuk-do, D. D. EE Ri 113-1

239,520,000

500,000,000

(F)

4

In Gyeongbuk-do, D. D. EE Ri 112-8

52,000,000

5

In Gyeongbuk-do, D. D. EE Ri 1406-8

41,120,000

guidance.

413,397,000

1,160,000,000

-746,603,00

Consolidateds

456,759,000

1,160,000,000

-703,241,000

C. However, the act of undermining creditors by reducing active property or deepening the fact that the debtor has already been in excess of his/her obligation by increasing his/her negative property, constitutes a fraudulent act (see, e.g., Supreme Court Decision 2000Da7783, Oct. 25, 2002). The act of selling the instant real property by BB Steel to the defendant on March 28, 2017 constitutes a fraudulent act detrimental to creditors including the plaintiff, and therefore, the intention of the BB Steel company in arrears is recognized, and in such a case, the defendant's bad faith is presumed as a beneficiary.

The sales contract of the instant real estate between BB Steel Co., Ltd. and the Defendant on March 28, 2017 should be revoked. As such, the Defendant is obliged to implement the procedure for registration of cancellation of ownership transfer registration of the instant real estate due to restitution following revocation of fraudulent act (see, e.g., evidence 7-1 business operator’s basic contents of evidence 7, BB Steel Co., Ltd., A-2 shareholder status inquiry, and A-3 family relation certificate (GH) of evidence 7)).

3. Conclusion

In order to seek implementation of the procedure for cancellation registration of ownership transfer registration under the name of the defendant, which was completed with respect to the real estate in this case, since the sales contract concluded between the non-party delinquent corporation and the defendant constitutes a fraudulent act under Article 30 of the National Tax Collection Act, since it constitutes a fraudulent act under Article 30 of the National Tax Collection Act, it has been filed in accordance with Article 30 of the National Tax Collection Act and Article 406 of the Civil Act.

1) Defendant YellowA is the spouse of Kim H, the representative of BB steel, a delinquent corporation, and is a person specially related to the delinquent corporation.