The act of donation of the real estate to the relative among the real estate bearing tax liability constitutes a fraudulent act (which is deemed as a judgment of the principal).

(J) The act of making a donation of the instant real estate to the Defendant, a relative, under the circumstance that a delinquent taxpayer is in excess of his/her obligation by bearing tax liabilities, etc., constitutes a fraudulent act and must be revoked

Article 208(3)2 of the Civil Procedure Act

2018 Ghana 86982 Revocation of Fraudulent Act

Korea

United StatesA

March 29, 2019

April 26, 2019

1. As to real estate listed in the separate sheet:

A. Revocation of a gift agreement concluded on November 28, 2015 between the Defendant and KimB, and

(b) The defendant has complied with the procedure for registration of cancellation of ownership transfer registration that was completed by KimB** district court** branch court* branch office* receipt***************.

2. The costs of the lawsuit are assessed against 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 on deemed confession (Article 208 (3) 2 of the Civil Procedure Act).

Cheongwon of the Gu

1. Relationship between parties;

The plaintiff is a person with a tax claim against the non-party KimB, and the defendant is a person with the status of KimB (child card No. 1 and family relation certificate No. 4).

2. Basic facts

A. The Plaintiff’s reason for imposing value-added tax and income tax on KimB

1) The “CC chemical” did not pay ten items, including the scheduled notice of value-added tax for the first period of 2013, while running a business in a mutual name, and the global income tax ***** the director of the tax office determined and notified the respective due date for payment as follows (A evidence 2, gift tax and income tax decision-making resolution, and document No. 3).

2) With respect to the above notification, on November 28, 2015, the delinquent amount of KimB at the time KimB donated to Defendant Jeon-B to Defendant Jeon-B (hereinafter referred to as “instant tax claim”) shall be as follows (the detailed statement of decision on collection of evidence No. 3).

3) As of the date of lawsuit, KimB does not pay value-added tax of KRW 109,937,270,000 (A evidence 4).

B. Reasons for the real estate disposition by KimB

On November 28, 2015, KimB entered into a donation agreement with the Defendant on November 28, 2015 with respect to the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") with the Defendant on January 12, 2016 and completed the transfer of ownership on the ground of donation. (A family relation certificate No. 1, and the entire registration certificate No. 5)

3. Formation of preserved claims;

Value-added tax imposed on added value created by a business operator is abstract at the end of the taxable period (see Article 21(1)7 of the Framework Act on National Taxes). The income tax imposed on an individual's income subject to taxation is abstractly established when the taxable period expires (see Article 21(1)1 of the Framework Act on National Taxes). Thus, the liability for payment of value-added tax and income tax on the plaintiff of KimB has been established by the lapse of each taxable period, and the legal relationship that forms the basis for the establishment of the claim is established upon the expiration of each taxable period. The obligation for payment of value-added tax and income tax on the plaintiff of KimB has been established. Although KimB filed a value-added tax and income tax return, it was not paid by KimB but actually paid by the plaintiff, and thus the tax claim of this case against the plaintiff KimB becomes final and conclusive as the tax claim of this case on the ground that

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

A. “Legal act detrimental to a creditor” means that a creditor’s claim cannot be fully satisfied due to a decrease in the debtor’s assets due to the debtor’s act of disposing of the debtor’s assets, which led to a lack of joint collateral or lack of sufficient joint collateral. As such, such fraudulent act may be established not only in cases where the debtor has already been in excess of his/her obligations prior to the disposal of assets, but also in cases where the debtor is in excess of his/her obligations due to an act of disposal, such as a donation of money, etc. (see, e.g., Supreme Court Decisions 2005Da6808, Apr. 29, 2005; 201Da82360, Feb. 23, 2012).

(b) Fraudulent act by KimB

1) The existence of a gift contract as an act of reducing liability property

The KimB decreased the liability property by donating the real estate of this case to the defendant while he was liable for the tax liability of this case.

2) Excess of liability at the time of the donation agreement

On November 28, 2015, when the instant real estate was donated, the active property of KimB was equivalent to KRW 28,023,600 of the instant real estate, and the passive property was KRW 38,661,150 of the instant tax liability imposed by the value-added tax and the income-free payment, which led to the excess of the obligation due to the instant donation.

(c) The intention of the KimB to understand the deceased;

1) The obligor’s intent, which is a subjective element of a fraudulent act, refers to recognizing that there is a shortage of common security of claims, and it does not need to harm or intend to harm creditors. If the obligor’s donated obligation is included in a negative property and thus his/her obligation is omitted due to the obligor’s act of donation, it would be presumed that the obligor’s intent of deception at the time of the act of donation (see, e.g., Supreme Court Decisions 2000Da41875, Apr. 24, 2001; 201Da82360, Feb. 23, 2012).

2) On September 4, 2015, the date of the final notification after September 4, 2015, when the value-added tax was notified by the Plaintiff on September 4, 2015 because KimB did not pay the value-added tax and the income tax, it constitutes a fraudulent act committed with intent to prejudice general creditors.

D. Sub-committee

If so, the instant real estate donation contract against the defendant of KimB constitutes a fraudulent act detrimental to the general creditor by causing the decrease of liability property.

5. Bad faith of the defendant

Since the beneficiary's bad faith is presumed, the beneficiary has the burden of proof to the beneficiary that he/she was unaware of being a fraudulent act. Examining the gift contract of this case prepared on November 28, 2015, KimB made a gift to avoid disposition on default, such as seizure, despite the beneficiary's clear knowledge of the amount of delinquent taxes, and it is apparent that this would be exempted from tax liability (A Family Certificate No. 1 and A Gift Contract No. 6).

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

On November 27, 2017, in order to review the suspicion of property concealment in order to arrange national tax delinquency against KimB, the Plaintiff was aware of the fact that the electronic data on delinquent property was perused and the real estate in this case was transferred in the name of the defendant who is a child. (The electronic data on delinquent taxpayer property No. 7)

7. Conclusion

Therefore, the Plaintiff’s claim was infringed by the gift contract concluded on November 28, 2015 with respect to the instant real estate between the Defendant and KimB, and the Plaintiff’s claim was filed with respect to the real estate indicated in the attached list, such as the purport of the claim, and the claim was filed to cancel the gift contract and restore the deviationed property to its original state.