자신의 체납처분의 회피를 위해 부동산을 딸에게 증여한 행위는 사해행위임[국승]
In order to avoid his disposition on default, an act of donation of real estate to his/her father and wife shall be a fraudulent act.
The defendant's act of making a donation of real estate owned by him to his children and reducing liability property after failing to pay a large amount of transfer income tax for the purpose of evading disposition on default constitutes a fraudulent act.
Article 30 of the National Tax Collection Act
2013 Ghana 153853 Revocation of Fraudulent Act
-00
Kim 00
Pleadings without Oral Proceedings
2014.03.12
1. Each real estate listed in the separate sheet between the defendant and Kim 00 (**************)
with respect to a donation agreement concluded on November 4, 2010 shall be revoked.
2. The defendant shall register to Kim 00 the Republic of Korea District Court on each real estate listed in the separate sheet.
procedures for the cancellation of registration of each transfer of ownership completed under No. 30491, Sept. 10, 2012
D. D. D.
3. The costs of lawsuit shall be borne by the defendant.
The same shall apply to the order.
1. Indication of claims: It shall be as shown in attached Form; and
2. Judgment without holding any pleadings: Articles 208 (3) 1 and 257 of the Civil Procedure Act.
Cheongwon of the Gu
1. Formation of tax claims;
A. Our status
The plaintiff is a person who has a tax claim of KRW 126,917,720 against the non-party in arrears Kim 00 (**********) Seoul 00 seconds 00939-17 401 and hereinafter referred to as "Gla 00"), and the defendant Kim 00 is a person who has a relationship between Kim 00 and female (Evidence 1).
(b) Taxation details;
The director of the tax office of 00 U.S. under the Plaintiff-affiliated 1 transferred the following lots of 00 547-8 and 17 (hereinafter referred to as “transferable real estate”) from October 1, 2010 to November 9, 2010 during the period from October 1, 2010, and notified the transfer income tax according to the fact that he did not report the transfer income tax. The Kim 00 did not pay it and the amount of national tax in arrears was KRW 128,214,90 (hereinafter referred to as “the national tax in this case”) as of the date of filing the lawsuit, and the specific amount of arrears is identical to the attached Table 2 (No. 2 evidence No. A, Kim 000).
Table 1: Details of the transferred real estate in arrears.
Location: Gyeonggi 00 000 00 (per parcel number);
(unit: Won)
Parcel Number
Land Category
(Size)
The date of sales contract
(Basic Date of the formation of Tax Liability)
Date of Sale
(Date of Receipt for Registration)
The reported amount of case delivery
(Sales Price)
The area per square meter;
Sales Price
(1) mountain 84-8
Forest land
(136㎡)
October 4, 2010
November 2, 2010
11,840,525
(2) mountain 84-10
Forest land
(125㎡)
October 4, 2010
November 2, 2010
11,824,619
(3) mountain 84-15
Forest land
(302㎡)
October 4, 2010
November 2, 2010
26,292,930
(4) mountain 84-16
Forest land
(369.5㎡)
October 4, 2010
November 2, 2010
32,169,661
(5) mountain 84-17
Forest land
(435㎡)
October 4, 2010
November 2, 2010
37,872,265
(6) 543
Answer
(170 square meters)
October 6, 2010
November 4, 2010
15,591,546
745
Forest land
(268С)
October 6, 2010
November 4, 2010
25,778,618
(8) 546
Forest land
(228㎡)
October 6, 2010
November 4, 2010
20,911,014
(9) 563
Forest land
(81㎡)
October 6, 2010
November 4, 2010
7,718,822
(10) 540
50
(165㎡)
October 6, 2010
November 4, 2010
12,313,432
74,626/Size
540-1
50
(246㎡)
October 6, 2010
November 4, 2010
18,358,209
74,626/Size
(12) 540-2
50
(215㎡)
October 6, 2010
November 4, 2010
16,044,776
74,626/Size
(13) 540-3
50
(240 square meters)
October 6, 2010
November 4, 2010
17,910,448
74,626/Size
(440-4
50
(240 square meters)
October 6, 2010
November 4, 2010
17,910,448
74,626/Size
(15) 540-6
50
(230.5 square meters)
October 6, 2010
November 4, 2010
17,201,493
74,626/Size
n. 540-18
50
(249㎡)
October 6, 2010
November 4, 2010
18,582,090
74,626/Size
⑰540-20
50
(22.5 square meters)
October 6, 2010
November 4, 2010
1,679,104
74,626/Size
⑱산84-11
Forest land
(379С)
October 4, 2010
November 2, 2010
6,730,451
⑲산84-14
Forest land
(105.5 square meters)
October 4, 2010
November 2, 2010
1,873,516
⑳540-19
50
(284.5 square meters)
October 4, 2010
November 2, 2010
10,396,033
36,541/Landing
guidance.
329,000,000
Table 2: Details of the decision on the initial notification of Kim 000 and the details of arrears as of the filing date of the lawsuit.
No.
Items of Taxation
Reversion
Date of Notification
Deadline for payment
Notice Tax Amount
Current arrears
1
Transfer
Income tax
2010
December 7, 2011
December 31, 2011
10,044,137
11,912,210
2
Transfer
Income tax
2010
January 4, 2012
January 31, 2012
98,063,143
16,302,780
Total
2 Cases
108,107,280
128,214,90
(unit: Won)
2. Existence of the preserved claim;
The Kim 00 made a donation contract with the defendant on November 4, 2010 on the attached list (hereinafter referred to as the “instant land”) to avoid seizure due to the disposition of national taxes in arrears conducted by the instant national tax, and on November 5, 2010 on the following day, he donated it to the defendant on the ground of the donation contract on November 5, 2010 (a certificate No. 3-1 OOri540-7, a copy of the land register of No. 3-2 Oriri540-15, a copy of the land register of No. 3-15).
Therefore, the notice date of national tax of this case against Kim 00 ( December 7, 201, January 4, 2012) is after the fraudulent act date of this case ( November 4, 2010), but the national tax of this case may be the preserved claim of the obligee's right of revocation in accordance with the following legal principles (a written resolution of determination of capital gains tax on No. 4).
“A claim protected by obligee’s right of revocation is, in principle, arising prior to the commission of an act that can be deemed as a fraudulent act. However, there is high probability that at the time of a fraudulent act, the legal relationship which serves as the basis of the establishment of a claim has already occurred, and that a claim is established by the near future legal relationship. In the near future, where a claim is established by realizing such probability in the near future, the claim may also become a preserved claim of obligee’s right of revocation, and the legal relationship that serves as the basis of the establishment of a claim shall be deemed to include the legal relationship under an agreement between the parties (see Supreme Court Decision 2002Da42957, Nov. 8, 2002).
According to the above legal principles, the date of occurrence of the legal relationship, which serves as the basis for the establishment of the capital gains tax liability, which serves as the basis for the preservation claim of this case, (on October 6, 2010) is expected to be prior to the date of fraudulent act (on October 4, 2010).Therefore, as the legal relationship, which serves as the taxation requirement, has already been formed prior to the date of the fraudulent act of this case, there is a reasonable probability that the national tax of this case may occur. Since the notice of national tax was given, there is no error that the national tax of this case becomes the preserved claim of this case.
3. Fraudulent act;
In order to avoid seizure due to default of national tax imposed on the principal, Kim 00 completed the registration of ownership transfer with the receipt number 00 registration office No. 30491 on November 5, 2010 on the land of this case on the ground of donation on November 4, 2010.
In other words, Kim 00, knowing that it would prejudice the plaintiff, who is a tax claim, has completed the registration of ownership transfer on the real estate in this case to the defendant, and it is clear that it is a fraudulent act for the purpose of undermining the plaintiff who is a tax claim.
4. Reduction of responsible property;
As of the date of the donation contract of November 4, 2010, the publication price of the real estate of this case as of the date of the next Table 3 is as follows.Therefore, for the purpose of not paying national taxes, Kim 00 reduced the liability property of KRW 18,374,100 as the gift to the defendant for the purpose of not paying national taxes.
Parcel Number
Area of a square meter;
(1)
May 31, 2010
Individual Land Price
(2)
officially announced value
(1) X=III
00 Li 540-15
51.5С
21,400 won
1,102,100
00 Li 540-7
127.0С
136,000 won
17,272,00
Total
178.5㎡
18,374,100
Table 3: The publicly announced market price of the real estate in this case.
However, the market price is estimated to be KRW 72,702,52 as follows:
Table 4: Estimated market price as of the date of donation contract of the real estate in this case
Parcel Number
Market Price
Calculation Criteria
Compared Parcel
00 Li 540-15
1,881,861 note 1
Category Cases
00 Ri 540-19
00 Li 540-7
70,820,661 note 2
Category Conversion
540-1, 540, 540-2, 540-3, 540-4, 540-6, 540-18, 540-20
Total
72,702,522
(unit: Won)
Note 1: The estimated market price of 00 Ri 540-15
(1) Real estate for sale: OOC 540-19
(2) Criteria for comparison: The officially announced value of May 31, 2010.
- 00 Ri 540-15: 21,400 won/m2
- - 00 Ri 540-19: 21,400 won/㎡
(3) The actual transaction value per square meter of 00 Ri 540-19 (284.5 square meters): 10,396,033 won/284.5 = 36,541 won
④ 00리 540-15(51.5㎡) 시가 : 36,541원 ☓ 51.5㎡ = 1,881,861원
(A's No. 5-1 O's 5-10-19 transfer price data, Gap's 5-2 O's 5-200-19, Gap's 5-3 O's 5-30-19, Gap's 40-15's 40-15's 40's 5-15's 000
Note 2: The estimated market price of 00 Ri 540-7
(1) Real estate for sale: To describe 540-1, 540, 540-2, 540-3, 540-4, 540-6, 540-18, 540-20 (hereinafter referred to as “540-1 and 7 parcels”)
(2) Compared standards: The actual transaction price ratio compared to the officially announced price of May 31, 2010.
1. The officially announced value per parcel, other than 540-1, 7 lots of land, which is a 18,200 won/m20 square meters;
The actual transaction price of a parcel outside 540-1, and 7 lots: 74,626/m26 square meters:
2) The ratio of actual transaction price to the officially announced land price: Maritime Affairs and Fisheries
74,626 won/ 18,200 = 4.1032
③ 00리 540-7㎡당 시가 : 136,000원 ☓ 4.10032 = 557,643원
④ 00리 540-7(127㎡) 시가 : 557,643원 ☓ 127㎡ = 70,820,661원
(A Evidence 6-1 540-1 and 7 parcels transfer value data, Gap evidence 6-2 540-1 and 7 parcels transfer value, Gap evidence 6-1, Gap evidence 6-17, Gap evidence 3540-17 and Gap evidence 6-40-7 officially announced value)
5. Excess of debts.
As of November 4, 2010, the active property of Kim 00 as of the date of the instant fraudulent act is 00 Do, Gyeonggi-do, 00 Do 00 Do 84-5 m231 m2, 84-6 m2, 84-6 m27 m2, 514,800 m2, and the public notice price is 514,800 m2, and the small property is 108,107,280 m280 m2.
Therefore, as the donation of the land in this case, Kim 00 caused a debt exceeding 107,592,480 won (514,800 won‐ 108,107,280 won = 107,592,480 won) and prevents the Plaintiff from meeting the Plaintiff’s taxation rights as much as the amount.
Note 3, No. 84-5, No. 84-6, the publicly announced market price
(1) 84-5 square meters: 38.5 square metersx 10,400 square meters = 400,400 won
(2) 11.0 square metersx 1.0 square meters = 10,400 won = 114,400 won
514,800 won
(A) No. 100 84-5,6 certified copy of the family register, A’s 200 84-5,6 officially announced value of the family register)
6. Intention and bad faith of the defendant;
On October 4, 2012, 201, Kim 00 issued a sales contract on October 2, 201 with Kim Jong-soo, etc. on the part of the above Table 1, and the transfer income tax was not reported on November 2, 2010 on the ground of which the transfer income tax was not reported later, and on November 4, 2010, donated the land of this case to the defendant on November 4, 201 in order to avoid seizure of the land of this case. The director of the tax office issued a notification of the transfer income tax pursuant to a non-report on December 7, 201.
As above, it is sufficient to view that Kim 000 made a sales contract, which is a legal act that forms the basis for the establishment of a claim for capital gains tax, and then made a donation to the defendant, was aware of the harm of the plaintiff as a tax claim
In addition, as the father of Kim 00, the defendant also seems to have fully known the fact that the donation of the land in this case was a fraudulent act and the intention of the deceased will of Kim 00.
7. The date on which he becomes aware of a fraudulent act;
Kim 00 was delinquent in paying the capital gains tax notified, and the plaintiff was transferred the land of this case due to the gift in the course of the disposition of withholding the reorganization on April 18, 2012, and he was aware of the fact that the donee is the defendant who is a female (No. 8 of the evidence No. 8 of this case and Kim00).
8. Conclusion
In light of the above facts, the transfer of ownership on the ground of the donation of the land in this case by Kim 00 constitutes a fraudulent act committed in order to avoid the amount of delinquent taxes that will occur in the future after the sales contract of the real estate that was transferred in arrears, and the defendant, the father of Kim 00, also known the fact. Therefore, the plaintiff was entitled to cancel the donation contract for each real estate in the annexed list as stated in the purport of the claim and seek cancellation of the transfer of ownership