Illegal Fare Swing

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Concerning the ex-manager of a Gandalf-group, a public prosecutor suspects a tax evasion as a result of the use of a goods slip. The legal counsel of the person concerned is considering a criminal complaint for alleged violation of official and official secrets.

Both considerations do not hit the problem kernel. Because if the ex-manager would be responsible for millions or billions of damages, regress and subsequent bankruptcy, as well as a bankruptcy charge, §§ 283 ff. StGB. Thus, intentional asset protection could turn into the opposite.

Anyone who purposely set aside parts of his assets, the – as well as the recipient of the financial advantage – threatened the so-called Paulian challenge by insolvency administrators and creditors. In Switzerland this is possible with a notice period of 5 years (Art. 288 SchKG); in Germany it was 10 years – until the deadline has been shortened to 4 years since 05.04.2017 (§ 133 InsO).

If your own tax adviser acts as a quasi-managing trustee, transferring the assets abroad – such as Switzerland – he will regularly be able to provide neither an official permit nor a liability cover for these activities.

Goods market swing as an indication of criminal bankruptcy charge?

In the small goods market swing, the spouses of the legal matrimonial property (Tinkercraft) to separate property; the gain is compensated – it remains tax-exempt as a legal claim ( BFH , BStBl. II 2005, 843). Of course, it can be a fictitious transaction or a mixed, contestable gift, if an arbitrary amount is paid as a settlement, without a court-proof calculation – for example, by appraisals and documentation. Conversely, however, earlier donations could still be made legally tax-free retroactively by inclusion in the settlement of the gain, § 29 I Nr.3 ErbStG.

An evasion of gift tax, together with a four-year countervailable donation, should therefore be avoided. It is often overlooked that a tax limitation period of up to 7 years only begins with the death of the donor – but the treasury in the event of death can also take all capital transfers of the last up to 30 years, § 170 V Nr.2 AO. Double taxation – first on donation and later on death – can be avoided by keeping the tax records in connection with the gift tax. In the case of an evasion, the period of limitation is 10 years, § 169 II 2 AO.

In the large goods market swings, the spouses return to the statutory matrimonial property regimes after a short or short time – for example, to be able to settle for further gain later. In this “extremely rare design” ( BGH , Judgment of 01.07.2010, Az. IX ZR 58/09) of a paid contract among relatives the disadvantage intent is assumed to the creditors by law, § 3 II AnfG, § 133 II InsO in conjunction with § 138 I inso. It is more than unfortunate that the relevant two-year German contestation period in this case has been replaced by one more than twice as long abroad.

Thus, there is a good prospect of 2 insolvency proceedings – one in Germany and one relief bankruptcy abroad. If one considers the international insolvency and bankruptcy law (IPR), intergovernmental agreements – even those from the 19th century – especially between cantons of Switzerland and “federal states” in Germany at that time – almost all efforts for an asset protection from the beginning annihilate. Although it often takes years, in the end, the Swiss Bank transfers the assets to the German insolvency administrator – for example, for an addendum distribution to the creditors. Planning also replaces chance with the (legal) error.

Property law – which goods right?

Spouses often rub their eyes after they got married outside Germany – for example in Singapore. If both Muslims, the Islamic matrimonial law on competent Sharia court – also by a German court – would apply. A matrimonial slip is eliminated. Alternatively, Hindu customary law or traditional Chinese law might be applicable. Or the unwritten common-law would apply, with the question of a permanent residence.

The legal effect can in fact be equal to a separation of property, or quite the contrary, a kind of community of property when married in places where Spanish is the national language. Then, with an achievement community, which by the way notarially after the marriage is no longer changeable, belongs to the spouse in the picture spoken anyway from the acquisition of every second atom.

Again, this is not a case for a freight slip. If probate and treasury on second citizenship, overseas marriage or overseas residences do not know or barely interrogate, they miss out on revenue – this field is more often dominated by bankers than outlaw counselors.

Countervailable property recovery through goods market swing?

Insofar as the intention to disadvantage, concerning current creditors, was known to the other part – ie the spouse -, the termination of the gaining community and its fulfillment is contestable, § 3 I AnfG, § 133 I InsO. Recently, a tax consultant, now that the notarial contract is closed, one could indeed calmly consider when which assets are transferred – a mistake, because on the legally sufficiently secure disposal, so at best the change of ownership, it matters.

Only by future creditors, the marriage contract is not contestable, because there is no claim to the maintenance of the property regime (BGH, judgment of 20.10.1971, Az. VIII ZR 212/69).

Modified Tinkercraft as a design obstacle

More often, one hears from the “wealth management” of “private banking” to “asset protection” the advice to exclude a gain during life. Then, however, the gain can be incurred only after the death of a spouse – the goods market swing is no longer in question. Well-intentioned advice turns out to be a boomerang.

The same applies where the self-employed in the most erroneous belief in the joint liability of the spouse, a separation of property agreed, including the exclusion of any gain for all time. An own goal, when it comes to the goods slip, because a joint liability of spouses is at best in question, where it is especially about replacement purchases for household appliances, §§ 1357, 1364 BGB.

Preservation of the future gain prevents goods market swing

According to the wording of § 852 II ZPO, claims for gain-sharing can only be seized if they have either been contractually recognized or have become subject to legal action, § 261 I ZPO.

However, § 852 ZPO does not prevent the actual seizure according to §§ 829, 835 ZPO in the foreclosure, but merely postpones the “transfer for confiscation” or recovery (BGH, judgment of 08.07.1993, Az. IX ZR 16/92, BGH of 06.05.1997, Az. IX ZR 147/96), as it is provided in § 852 I ZPO also in the compulsory portion claim (BGH, judgment of 26.02.2009, Az. VII ZB 30/08).

Thus, the seizure is possible even before the assertion by the creditor (another spouse as the holder of the claim to gain). After the seizure, the gain is legally blocked – and there is no room for the freight slip.

The subsequent omission of the assertion of claims within the meaning of § 852 ZPO is (contrary to the wording of § 129 II InsO) neither contestable, nor does this lead to a liability for damages of the creditor (BGH, judgment of 06.05.1997, Az. IX ZR 147/96) ,

If the ex-Gandalf manager falls victim to social assistance later, however, the social assistance provider (even against the will of the claimant, ie the owner of a claim for gain) may transfer the claim for gain – in case of need for maintenance – to himself and assert it.

Tax liability after gratuitous transfer of assets to spouses

If tax debts still exist for an impoverished spouse, the fiscal division (on application, by the tax office) among the spouses does not help, because the treasury gets it from the other spouse, § 278 AO.

Asset protection, against the background of unpaid taxes, will hardly lead to success, as far as the enforcement authority knows the case law of the BFH, and international law. The latter seems questionable, as far as the tax liability of the shareholders of foreign corporations (for profits in the “Tarnkonstrukt”) has not been seen since the “Panama Papers”.

Now one could come up with the idea to assign the gain “in advance” – which of course would be countervailable. In addition, the gain legally only with the termination of the matrimonial property – which in any case results in the nullity of the Vorzession (BGH, judgment of 08.05.2008, Az IX ZR 160/06).

Family home swing as an alternative?

The so-called family home swing often comes as an alternative in question: In this transfers the wealthier spouse a (in the EU – not in Switzerland, shared by the spouses, self-occupied, with predominant residential use) property tax-free (regardless of the matrimonial property, any number, no limit ), § 13 I Nr.4a ErbStG. However, a shortage of residence would call for a misuse of the design. Years later, a resale – also tax-free among spouses – could take place; again with the need to take into account the contesting possibilities for old and new creditors.

How do ex-managers become a tax evader through a freight slip?

Assuming an increase in wealth exists only in the person of the ex-manager, not with his spouse, in the amount of € 100 million – so you might think, 50 million € to the spouse to pay by goods slip is legally and tax-free. Here it becomes clear that the goods market swing could possibly save “half” – for the rest, there are other ways to find; which are often in other jurisdictions and are not controlled by bankers – because the alleged specialists prove to be semi-knowledgeable in practice.

If the ex-manager is liable for more than € 100 million, the gain is “zero”. Thus, any award of compensation becomes creditable for creditors donation. The tax adviser would need only moderate effort to recognize the consequence of a gift tax liability – the suspicion of evasion is avoided. Only if the ex-manager is also inclined to act, his tax evasion consultant is potentially no longer liable to him – for example for fines and defense lawyer costs; also for gift tax, if it had given a more favorable design.

Asset transfer for severance pay or life annuity?

The purchase of a (same-value, possibly deferred) life annuity would also not be a viable option if the ex-manager had already learned of his liability (perhaps only from the newspaper). Because with this, the assets of the ex-manager are indirectly diminished, because thereby the access for creditors on the assets of the debtor is delayed, impeded or thwarted (BGH, judgment of 22.12.2005, Az. IX ZR 190/02).

Also a compulsory part compensation is eliminated, because given over-indebtedness there is computationally no compulsory part – but if necessary later an expected attack strike.

How long do overindebted ex-managers sit on the electric chair?

Even more effective than the challenge by creditors and insolvency administrators may be the liability for tort in connection with criminal law, § 823 II BGB. After all, absolute limitation begins after 10 years. Recently, an ex-manager publicly confessed that he was without assets and had legal “asset protection” – the admission of his intent; “Now determined the prosecutor and the insolvency administrator complains” commented this then a journalist.

The ex-manager sits until the opening of his bankruptcy, so to speak on hot coals, because only then the bankruptcy offense is over, and the criminal limitation of 5 years begins. From the opening of the main criminal proceedings, the statute of limitations in severe cases for another 5 years, § 78 b IV StGB.

The statute of limitations is also interrupted, for example, by announcing the initiation of a preliminary investigation, search warrant, or filing of the indictment (BGH, judgment of 10.11.2016, ref. 4 StR 86/16).

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