Suwon District Court Sungnam Branch-2018-Gohap-407186 ( October 24, 2019)

Revocation of Fraudulent Act

In addition, it cannot be readily concluded that the remittance of this case was a donation to the defendant by the delinquent taxpayer. Moreover, it cannot be determined whether the remittance of this case was fraudulent by separating only the remittance of this case as a series of acts, and it does not appear that there was an increase or decrease in the common creditors' joint security before and after the series of acts.

The contents of the judgment are the same as attachment.

Article 30 of the National Tax Collection Act

2019Na13144 Revocation of Fraudulent Act

Korea

AA

on October 04, 2019

October 02, 2019

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The contract of gift of KRW 502,653,150 entered into on December 11, 2015 between the defendant and BB shall be revoked.

The defendant shall pay to the plaintiff KRW 502,653,150 and shall be repaid to the plaintiff from the day after the day this judgment becomes final and conclusive.

By the day, 5% interest per annum shall be paid.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. Conclusion, etc. of the instant sales contract

1) AB and its wife around March 2015, the Defendant sold an amount of KRW 2.14 billion [1.54 billion in Busan 1.54 billion in total (1.1.376 billion in total), KRW 11,378 in OO-Eup O-type forest land (hereinafter “san 106-1 forest land”) prior to registration conversion and partition owned by the Defendant, and KRW 106-6 forest land of KRW 106-6,250 in total (hereinafter “san 106-6 forest”) prior to the registration conversion and partition owned by the Defendant (hereinafter “san 106-1 forest”), KRW 1.54 billion in total (a contract amount, KRW 1.376 billion in total), KRW 106-6 forest land, KRW 69,900 in total), including the purchase price, to HH, etc.

2) The remainder payment date under the instant sales contract was July 30, 2015, but the remainder payment date was postponed on the condition that HH et al. bears all financial expenses, including interest on loans after the payment date of the remainder.

3) Meanwhile, according to the instant sales contract, BB received KRW 1,598,203,840 (the sum of interest on loans, etc. accrued from failure to observe the date of prohibition of remaining payment) on seven occasions from May 26, 2015 to August 12, 2016 as the sales price for the forest owned by it.

B. The grounds for the occurrence and repayment of loans owed by the Defendant

1) On August 2, 2011, as of August 2, 2011, the maximum debt amount of KRW 520,000,000,000,000 for the debtor BB, and OOB forestry cooperatives (hereinafter “association”) and the maximum debt amount of KRW 130,000,000,000 for the maximum debt amount of KRW 130,000,000,000 for the debtor BB, and the right to collateral security of a collective security association (hereinafter “each of the instant collective security”).

2) On August 5, 2015, the Defendant obtained a loan of KRW 500 million from the partnership (hereinafter “the instant loan”).

(B) The loan of this case was used to repay the debt owed to the association of BB, which was secured by each of the instant collective security rights (the Defendant asserts that at the time, the Defendant did not extend the loan under the name of BB and paid the debt owed by BB after obtaining loan under the name of the Defendant). Meanwhile, on August 3, 2015, the additional registration of each of the instant collective security rights to change the debtor as to each of the instant collective security rights was completed due to the acquisition of the contract on the same day.

3) BB transferred KRW 502,653,150, out of the money received as the purchase price pursuant to the instant sales contract on December 11, 2015 (hereinafter “instant remittance”); and the said money was used to repay the principal and interest obligation of the instant loan amounting to KRW 502,653,150 (the sum of principal and interest KRW 500,653,150).

(c) Default, etc. of capital gains tax by BB;

1) On February 2017, BB reported to the head of the Gyeonggi Mine District Tax Office a transfer income tax on the transfer of 106-1 forest land, etc., but did not pay the estimated tax amount.

2) On April 12, 2017, the head of the OOO tax office issued a notice of payment of capital gains tax of KRW 752,981,700 to BB as of July 8, 2017.

3) As of the filing date of the instant lawsuit ( August 29, 2018), BB’s arrears in capital gains tax (including additional dues) is KRW 874,964,730.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 11, Eul evidence Nos. 1, 2, 4, 6, 7 (including each number, if any) and the purport of the whole pleadings

2. Determination

A. The plaintiff's assertion

1) The remittance of this case is a donation by BB to the Defendant, and constitutes a fraudulent act that reduces the common creditors’ joint security of BB as a donation by BB to the Defendant, and also is recognized as the intention of BBB’s pardon.

2) Meanwhile, while the Plaintiff’s claim for capital gains tax against BB occurred after the instant remittance, the instant sales contract, which was the basis of its establishment, was concluded before the instant remittance, and the BB was paid a partial purchase price pursuant to the instant sales contract prior to the instant remittance. As such, the legal relationship, which was the basis of the Plaintiff’s establishment of the Plaintiff’s claim for capital gains tax, was established at the time of the instant remittance, and was highly probable as to the occurrence of the claim, and the said claim was actually generated thereafter. Accordingly, the Plaintiff’s claim for capital gains tax becomes a preserved claim for revocation

3) Therefore, the above donation contract between BB and the Defendant should be revoked as a fraudulent act against the Plaintiff. As a result, the Defendant is obligated to pay the Plaintiff the amount of remittance of this case, KRW 502,653,150, and delay damages.

B. Determination

1) In full view of all the circumstances, including the progress of the execution of the instant sales contract, the occurrence and repayment of the instant loan, and the time of the repayment, and the relationship between BB and the Defendant, the Defendant had an implied agreement between BB and the Defendant at the time of the instant loan, on the following grounds: (a) as to each of the instant collective security interests, the Defendant had the interest to repay the loan obligation of BB, which is the secured debt; and (b) as the object of the instant sales contract in Busan 106-6, the Defendant appears to have been expected to have been performing the instant loan obligation early according to the process of performing the instant sales contract from the time of the instant loan; and (c) as to the occurrence and repayment of the instant loan; and (d) there was an implied agreement between BB and the Defendant at the time of the instant loan and the purchase price received pursuant to the instant sales contract; and (c) it seems that the instant transfer

2) According to the foregoing, it cannot be readily concluded that the instant remittance was a donation to the Defendant of BB. Moreover, it cannot be concluded that the instant loan, repayment of loans and obligations of BB arising from the instant loan, and the instant remittance cannot be determined by separating only the instant remittance as a series of acts, and it does not appear that there was an increase or decrease in the BB’s general creditors’ joint security before and after the series of acts.

3) Therefore, the Plaintiff’s assertion that the instant remittance was a donation to the Defendant of BB and constitutes a fraudulent act against the Plaintiff is without merit to further examine.

3. Conclusion

The plaintiff's claim shall be dismissed as it is without merit. The judgment of the first instance court which concluded otherwise shall be dismissed.

Since the plaintiff's claim is unfair, it shall be revoked and dismissed.