Daegu District Court-2018-Ban-104931 (2018.02.01)

The inherited property includes the property to be restored to the original state due to revocation of fraudulent act.

The inherited property includes the property to be restored to the original state following the revocation of fraudulent act. The defendants constitute a malicious beneficiary or subsequent purchaser, and thus are obligated to restore the original state due to the revocation of the act of donation.

Article 30 of the National Tax Collection Act

2018Na302436 Revocation of Fraudulent Act

Korea

Maa and 2

Daegu District Court Decision 2018Da104931 Decided February 1, 2018

2018.07.18

2018.09.05

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

With respect to KRW 142,300,00 between Non-Party Gamba and Parks on March 11, 2014, the gift agreement concluded on March 11, 2014 shall be revoked. The contract for donation concluded on March 11, 2014 shall be paid to the Plaintiff; KRW 35,300,000 to the Plaintiff; KRW 87,000 to the Defendant Newa; KRW 20,000 to the Defendant Ja; and KRW 20,000 to each of them; and KRW 35,00,000 between Non-Party Lba and Defendant Lba and the day of full payment. The contract for donation concluded on May 13, 2014 is revoked; Defendant Lbg shall be paid to the Plaintiff with interest of KRW 35,00,000 and KRW 5% per annum from the following day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

A. Parkss and Defendant Park Ggg operated a rest area called "www parking lot" on January 23, 1989, and Defendant Shin-A operated the rest area in the said rest area along with Parkss. The rest area and the restaurant operation closed in April 2007. Defendant Shin-A and Park Parks were married with Defendant Shin on January 23, 1989. Defendant Ja operated the rest area in the said rest area on the grounds of economic confusion on November 15, 2006, etc.

C. Although Ga had owned 4,789 square meters of PP forest (hereinafter “the instant real property”), as at the time of 2014, there was no other peculiar property. On February 1, 2014, Gaba sold the instant real property to Ba, Parkt, and Dor for KRW 650 million and completed the registration of transfer of ownership in the name of buyers on March 10, 2014, but on January 2, 2015, she did not make a preliminary return of transfer income tax, but on January 31, 2015, rba notified Ga of the transfer income tax amounting to 235,143,102 won as the due date for payment. However, Ga was not notified of the transfer income tax, but paid for KRW 300,390,300,00 of the current amount of delinquent tax, including the increased amount of delinquent tax, KRW 39,390,000.

D. Around March 11, 2014, Park Jae-a donated KRW 14,230,000,000,000,000,000 to Gas paid to Gas for the sale and purchase of the instant real property (hereinafter referred to as “donations in March 11, 2014”). Gams paid KRW 87,00,000,000 to Defendant Ja through Defendant Newa, and paid KRW 20,000,000,000 to Defendant Ja through Defendant Newa, and the remainder KRW 35,30,000,000,000 was owned by himself (the amount of KRW 10,00,000, out of which was established by Defendant Newa).

E. around May 13, 2014, Park Jong-a donated 35 million won, out of the remaining money paid to Defendant Park Gg for the sale and purchase of the instant real estate to Defendant Parkg (hereinafter referred to as “the donations made on May 13, 2014”; and “each of the instant donations,” including the donations made on March 11, 2014.

2. Determination

(a)the existence of preserved claims;

1) In principle, a claim that can be protected by the obligee’s right of revocation requires that an act was conducted prior to the occurrence of a fraudulent act, but there was a legal relationship that has already been based on which the claim was established at the time of the fraudulent act. It is highly probable that a claim would have been established in the near future in the near future, and in a case where a claim was established by realizing the probability in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2000Da64038, Nov. 26, 2002).

According to the above facts, although Park Jong-a's notice of transfer income tax on the sale of the real estate at the time of each gift of this case was not given, Park Jong-a's notice of transfer income tax on the sale of the real estate of this case was not given, but Park Jong-a, by selling the real estate of this case before each gift of this case and completing the registration of ownership transfer to the buyer, the basic legal relationship with regard to the occurrence of transfer income tax has already occurred and the claim of transfer income tax has already been established as the abstract liability for payment of transfer income tax due to the occurrence of the basic legal relationship. Since the claim of this case has been established through a series of procedures thereafter, it was highly probable that the above claim is established in the near future by based on the above legal relationship in the near future, as well as the fact that the above claim has been established in the near future. Thus, the plaintiff's

In addition, insofar as capital gains tax claims are recognized as preserved claims against obligee’s right of revocation, the amount of such capital gains tax includes additional charges and increased additional charges incurred by the date of closing argument in fact-finding proceedings after the fraudulent act (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007). Therefore, Plaintiff’s capital gains tax and additional charges against Park Ga constitute preserved claims against obligee’s right

2) As to this, Defendant New Ga, Ja, Article 24(1) of the Framework Act on National Taxes provides that “When an inheritance is opened, the heir shall be liable to pay national taxes, additional dues, and expenses for disposition on default imposed on, or to be paid by, the decedent within the limit of the inherited property.” However, Park Jong-a, a tax obligor against the Plaintiff, died in insolvent. As such, the heir, pursuant to Article 24(1) of the Framework Act on National Taxes, did not succeed to the tax obligation of Park Ro, and his claim for taxation, a preserved claim for revocation of fraudulent act, was extinguished.

The above argument by Defendant Newa and Jaa seems to be on the premise that only the property of the inheritee under the name of the inheritee at the time of the death of the inheritee is considered inherited property and that the property transferred to a third party due to the fraudulent act of the inheritee is excluded from inherited property.

However, in order to determine the existence and scope of a tax obligation exempted beyond the scope of inherited property pursuant to Article 24(1) of the Framework Act on National Taxes, the scope of inherited property should be determined first. Such inherited property should include not only the property under the name of the inheritee at the time of the death of the inheritee, but also the property transferred to a third party due to a fraudulent act by the inheritee, which should be restored to the original state in accordance with the revocation of fraudulent act.

(b) The intention to commit fraudulent acts and to injure himself;

1) In order for a debtor's act of disposing of property to become a fraudulent act, the act must cause a decrease in the debtor's whole property and thus, the debtor's small property should be more than active property. In other words, even if the debtor's total amount of property exceeds his/her active property at the time of the debtor's act of disposing of property, his/her active property among real estate claims, and even if the debtor's total amount of property exceeds his/her obligation, it should be excluded from the positive property, unless there are other special circumstances. If the debtor's property is a claim, it should be included in active property only where it is confirmed by reasonably determining whether it is obvious that it can be easily repaid (see Supreme Court Decision 201Da32533, Oct. 12, 201).

Comprehensively taking account of the purport of the entire pleadings, the following facts are established: (a) while there was no other active property from the time of each of the instant donations; (b) while there was a debt of KRW 235,143,102 against the Plaintiff, including the Plaintiff’s transfer income tax liability of KRW 390,000 and financial debt of KRW 400,000 and KRW 23,143,102; and (c) thereafter, the obligation of capital gains tax against the Plaintiff was established in detail; and (d) sale price of the instant real estate was recognized. Accordingly, Park Jong-a is determined to have reached the status of excess of the obligation solely due to each of the instant donations. Accordingly, each of the instant donations of KRW 235,143,102, which was in a position to be paid in preference to the general creditors, constitutes a fraudulent gift that undermines the Plaintiff, the beneficiary of May 13, 2014, and Defendant Park Jin-jin’s subsequent purchaser’s each of Defendant Park 14.

2)In this regard, Defendant Park Jae-ff asserts that ① out of KRW 35 million received from Park Jong-a, KRW 20 million was paid out of his 35 million, and ② the remainder of KRW 15 million was used for the same purpose as being kept in custody for the treatment, funeral expenses, etc. of Park Jong-a, this is merely repayment or deposit and does not constitute a fraudulent act.

First of all, it is difficult to recognize the fact that the evidence submitted by Defendant Parkfff solely with respect to the above KRW 20 million was leased to Defendant Parkfff Ga 20 million. Even if Defendant Parkf fright had a loan claim against Defendant Parkf fright, in the event that the joint security of other creditors is reduced due to the debtor's repayment to a specific creditor in excess of his/her obligation, the debtor becomes a fraudulent act if he/she, in collusion with some creditors and with the intent to prejudice other creditors, and thus, the above evidence and the purport of the entire arguments can be comprehensively considered, namely, under the following circumstances, ① even if Defendant Parkf fright's assertion, Park a opened an account to pay money to Defendant Parkf fright who temporarily returned to the United States residing on January 2014, in light of the fact that Defendant Parkf fright opened a new passbook and opened a passbook, and ② Defendant Parkf fright had a large number of debts to be repaid to Defendant Parkf fright, as seen earlier, in light of the following circumstances:

Next, it is not sufficient to recognize that Park Ga was in a custody of the above 15 million won to Defendant Park Ba with the evidence submitted by Defendant Park fff, and there is no other evidence to acknowledge that Park Ga was in a custody of the above 15 million won to Defendant Park f, and there is no other evidence to acknowledge this (According to the overall purport of the statements and arguments set forth in subparagraphs A-3 and B-D No. 4, Defendant Park fright received KRW 15 million from Park Ga as a check, and then deposited it into his own account, and used it as well as funeral expenses, etc., other than funeral expenses).

Therefore, the above argument by Defendant Park Jae-ff is without merit.

C. Determination as to the defendants' good faith defense

1) Defendant Shin-a and Jina paid KRW 17 million to Defendant Shin-a, on March 11, 2014, KRW 1700,000,000,000,000,000,000,000 received from Parkss, was unaware of the fact that the gift was entered into and that it was the money acquired as the said gift, and Park Jae-a’s insolvency was not known. However, in light of the above evidence and the overall purport of oral argument, the Defendants asserted to be a bona fide subsequent purchaser. However, the following circumstances, which can be seen by comprehensively considering the aforementioned evidence and the overall purport of oral argument, i.e., (e., (i) Park Ga and Shin-e (the birth of Defendant Shin-a) received money from Park Ga, 42,300,000,000,000,000,000,000 won, which was 10,000,000,000,00.

2) Defendant Parkff’s defense as a bona fide beneficiary since Park a was unaware of the insolvent status at the time of signing the gift agreement as of May 13, 2014. However, the circumstances alleged by Defendant Park fff alone are insufficient to recognize the good faith of Defendant Park fff, and there is no other evidence to acknowledge it otherwise.

3) Therefore, the Defendants’ good faith assertion is without merit.

(d) Revocation of fraudulent act and reinstatement;

Therefore, each gift contract of this case shall be revoked as a fraudulent act, and accordingly, it shall be obligated to pay to the Plaintiff the amount of KRW 87 million to the Plaintiff, KRW 20 million to the Defendant Jina, KRW 35 million to the Defendant Park Jae-ff, and damages for delay calculated at the rate of 5% per annum from the day following the day when this judgment becomes final and conclusive to the day of full payment, as sought by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified, and the judgment of the court of first instance is just in its conclusion, and all appeals by the defendants are dismissed, and it is so decided as per Disposition.