the contract of donation to a child constitutes a fraudulent act

The sales contract which is the cause of transfer income tax claims was made before the conclusion of the gift contract, and there is a high probability that the transfer income tax claim will be established in the near future, and thus, the gift contract with the defendant constitutes fraudulent act intending to prejudice the creditor.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Acts and Restoration to Original State)

2018 Ghana 133459 Revocation of Fraudulent Act

AAAA

BB

March 13, 2019

April 3, 2019

1. The gift agreement concluded on December 8, 2015 with respect to two-fifthss of the real estate stated in the separate sheet between the defendant and KK shall be revoked.

2. The defendant shall pay to the plaintiff 189,00,000 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

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;

The reasons for the attached Form shall be as shown in the attached Form.

2. Judgment by public notice (Article 208 (3) 3 of the Civil Procedure Act).

Cheongwon of the Gu

1. The relationship between the parties

Non-party KK is a national tax delinquent, and the defendant is the delinquent taxpayer of KK (the family relation certificate No. 1).

2. Details of the instant case

A. Details of the Plaintiff’s taxation claim against Nonparty KK

1) A) From November 21, 2008 to December 9, 2015, KK has operated a single food store business with the trade name of 'OOOJ J1' in 222, 223, 224, 225, 226-1, 230 among 24 and 1 parcel between 24 and 1 parcel from November 21, 2008 (the "OO" business entity's basic rule).

B) In relation to the operation of the above business, KK did not pay global income tax and value-added tax for the year 2014-2015, and the delinquent tax amount (including additional dues) for it did not reach KRW 40,854,850 as shown below [Attachment 1] Nos. 1 through 4, as shown below (Article 3).

2) In addition, KSJJJ-gu J1 owns OOJJ 22, 223, and 224 (hereinafter “transferable real estate of this case”) out of 24 and 1 parcels of land. On November 17, 2015, KS entered into a sales contract with MOM on each of the above real estate, KS and completed the registration of transfer of ownership on December 3, 2015 (the certificate of each of the registered items in subparagraph 4 of this paragraph).

B) However, KK did not report the transfer income tax on the transfer of each of the above real estate, and on June 2, 2017, the chief of the JJ Tax Office affiliated with the Plaintiff decided to pay the transfer income tax of KRW 297,406,856 to KK by June 30, 2017.

C) Nevertheless, KK still has not paid the above transfer income tax, and the tax amount in arrears, including such additional dues, amounts to 356,293,370 won as shown below [Attachment 1] Nos. 5 [Attachment 1] and 356,293,370 won (A Evidence 3 No. 3 is not delinquent).

3) As such, the national taxes in arrears by KK up to 397,148,220 won in total.

B. Disposition of the real estate by Nonparty KK

KK owns 2/5 shares of JJJ OO, 1781-5 OT 701 (hereinafter referred to as "the real estate of this case"). On December 8, 2015, KK entered into a contract with the defendant on the donation of the above co-ownership (hereinafter referred to as "the donation contract of this case") and completed the transfer registration of ownership shares to the defendant on December 9, 2015 (the certificate of No. 5 and the entire certificate of registration No. - the real estate of this case).

3. Requests for the revocation of fraudulent act;

(a) Tax claims which are preserved claims;

1) In principle, 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. However, at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and there is high probability that the claim should be established in the near future. In the near future, where a claim has been created due to its realization in the near future, the claim may also become a preserved claim of the obligee’s right of revocation. Such a legal principle applies to a tax claim (see Supreme Court Decision 2000Da37821, Mar. 23, 2001).

2) The instant gift contract was concluded on December 8, 2015. There is no room for doubt as to the fact that, in the case of a tax claim Nos. 1 through 4 above, the date of establishment of a tax claim is earlier than the date of the instant gift contract, it becomes the preserved claim of the obligee’s right of revocation.

3) On the other hand, in the case of value-added tax No. 5 No. 5 of the above [Attachment 1], ① the date the tax liability is established is December 9, 2015, which is the date the gift contract of this case, which is the date prior to the date the contract of this case was concluded, is clear that there was a legal relationship (sale) which is the basis of the establishment of the above value-added tax claim, and ② there was a high probability as to the fact that the value-added tax claim is established in the nearest future in the said legal relationship. ③ Since the possibility that the Plaintiff was realized by imposing the above value-added tax on KK, and the Plaintiff had the above value-added tax claim against KK, the Plaintiff’s claim for value-added tax and additional charge amounting to KRW 6,618,820 of the Plaintiff’s claim against K is the preserved right of revocation.

B) In addition, in the case of capital gains tax No. 6 of the above [Attachment 1], ① the sales contract which is the cause of the above capital gains tax claim was concluded on November 17, 2015, which was prior to the conclusion of the above gift contract, and the basic legal relationship of the above capital gains tax claim was already established at the time of the donation contract of this case, and ② there was a high probability that the capital gains tax claim following the transfer of the transferred real estate of this case will be established in the near future, as the legal relationship of this case was based on the legal relationship of this case. ③ In fact, the possibility of the Plaintiff’s imposition of the above capital gains tax to KK was realized, and the Plaintiff had the above capital gains tax claim against K, thus, the Plaintiff’s capital gains tax and additional charge claim of this case equivalent to KRW 356,293,370 of the Plaintiff’s capital gains

(b) Fraudulent act;

1) At the time of the instant donation contract, KK’s active property is 2/5 of the shares in co-ownership of 2/5 of the instant real property and 00 OOOO-gun OO-gun’s KRW 518-5 and KRW 116 square meters (the officially announced value at the time of the instant donation contract). However, the small property was more than 326,417,420 won (based on the notified tax amount, see attached Table 1) in total of the instant tax liability (see attached Table 6), and more than 326,417,420 won (see attached Table 1).

2) During this excess, KK donated 2/5 of the instant real estate to the Defendant, who is the ASEAN on December 8, 2015, and thereby led to excess of the obligation. Such a donation agreement constitutes a fraudulent act committed by the intent to harm the Plaintiff, who is the obligee.

C. KK's intention to commit suicide and the defendant's bad faith

As long as the instant donation contract constitutes a fraudulent act objectively, KK was aware that it would thereby prejudice the general creditors, including the Plaintiff, at the time of the instant donation contract, and the Defendant, who is the beneficiary, is also presumed to be a beneficiary.

D. Sub-determination

For the same reason, this case’s gift agreement concluded on December 8, 2015 with respect to two-fifthss of the attached real estate between the defendant and KK constitutes a fraudulent act and should be revoked.

4. The date on which he becomes aware of a fraudulent act;

The Plaintiff was aware of the fact that he donated 2/5 of the real estate in this case to the Defendant who is ASEAN, only after the Plaintiff inspected the entire certificate of registered matters and inspected the family relation certificate on August 22, 2018 in the course of conducting an asset analysis and tracking investigation of the property tracking division of the regional tax office in arrears of KRK’s national tax amount.

5. Claim for compensation for value;

A. Examining the entire record of the registration No. 5, the Plaintiff’s entire record of the instant gift agreement: (a) was completed on March 27, 2012, the date of the instant gift agreement; (b) on March 27, 2012, the establishment registration of the mortgage was completed at KRW 800,000,000, which is the date of the instant gift agreement; and (c) on May 4, 2017, which is after the date of the instant gift agreement, the establishment registration of the mortgage was cancelled on May 4, 2017. Therefore, the Plaintiff may seek compensation against the Defendant by means of restitution following the revocation of

B. ① The above right to collateral security was provided as joint collateral for the real estate of this case and the building 601 (the entire certificate of registration No. 5 of this case - the real estate of this case, the entire certificate No. 8 of this case - the entire certificate No. 601), ② the appraisal price of the real estate of this case and the building No. 601 is 830,000,000 each (the appraisal price of real estate No. 9 of this case), ③ the amount of the secured debt of the above right to collateral security as of the date of conclusion of the gift contract of this case is 615,00,000 (the evidence No. 10 of this case No. 10), ④ In light of the fact that the PPP, 50,000,000 won was established for the real estate of this case before the date of conclusion of the donation contract of this case (the entire certificate of registration No. 5 of this case-the real estate of this case).

[830,000,000 won - (615,000,000 won x 1/2) - 50,000,000 won] x 2/5 = 189,00,000 won

C. Thus, the amount of compensation following the revocation of fraudulent act is the value compensation, and the defendant is obligated to pay to the plaintiff 189,000,000 won and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day when the judgment of this case became final to the day of full payment.

6. Conclusion

For the same reason, the plaintiff has filed the lawsuit of this case to seek a judgment like the purport of the claim, and all of the plaintiff's claims have been accepted and the main time has been reached.