Whether the transfer proceeds received by his/her child and her child constitute a fraudulent act

It is reasonable to view that the donation of the purchase price of the instant real estate to the Defendants constitutes a fraudulent act, as it resulted in the reduction or harm of the common creditors’ joint security.

Contents are the same as attachment.

Article 30 of the National Tax Collection Act

Daegu District Court 2018Gahap204149

Korea

○○○ 3

March 28, 2019

April 25, 2019

1. 50,00,000 won concluded on December 30, 2014 between AA and Defendant BB and December 31, 2014

The agreement on each gift of KRW 50,000, KRW 59,000, KRW 500,000 concluded on October 13, 2014 between AA and Defendant CCC and KRW 38,50,000,000 entered into on December 26, 2014; and KRW 10,000,000 entered into on December 26, 2014 between AA and Defendant DD; KRW 20,00,000,000 entered into on January 3, 2015; and KRW 10,000,000,000 entered into on February 3, 2015 between AA and Defendant EE; and each contract on each gift of KRW 10,00,000,000 entered into on March 6, 2015 between A and Defendant EE.

2. The Plaintiff shall pay to Defendant BB 10 million won, Defendant CCC 97,500,000 won, Defendant DD 40,000 won, Defendant EE shall pay to the Plaintiff 10,000,000 won with 5% interest per annum from the day following the day this judgment became final to the day of full payment.

3. The costs of lawsuit shall be borne by the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. The relationship between the parties

BB, CCC, and EE are children of AA, and DD is the identification of EE and the rise of AA.

(b) Sale of real estate by AA;

AAA entered into a sales contract with FF and GG on October 9, 2014 for selling at KRW 1,440,000,000 of land and buildings thereon (hereinafter “instant real estate”) to FF and GG for KRW 1,440,00,000. An account of a community credit cooperative in the name of AAA on October 9, 2014, excluding KRW 955,202,00,000, excluding the instant real estate-related loans, deposit money for lease, etc., and KRW 1,00,000,000 of the down payment, out of the sales amount of KRW 484,798,00,000, excluding the instant real estate-related loans

(1941-10-04***), balance 384,798,00 won, agricultural bank accounts in the name of AA on December 24, 2014.

(356-0989-3***-93) received each transfer, and completed the registration of ownership transfer of the instant real estate in the name of FF and GGG on December 24, 2014.

C. Payment of money to the Defendants by AA

1) On December 30, 2014, AA transferred KRW 50,000,000 to the Agricultural Cooperative account of Defendant BB, and KRW 50,000,000 in total, five copies of the check at which AB occurred, was deposited into the Daegu Bank account of Defendant BB on December 31, 2014.

2) On October 13, 2014, AA transferred KRW 59,00,000 to Defendant CCC and KRW 38,500,000 to the Agricultural Cooperative Account of Defendant CCC on December 26, 2014.

3) On December 26, 2014, a sum of KRW 10,000,000,000 per check issued by AA, was deposited in the agricultural bank account of Defendant DD on December 26, 2014, total of KRW 20,000,000 in the total of KRW 10,000,000 per check, in the agricultural bank account of Defendant DD on January 31, 2015, and in the post office account of Defendant DD on February 3, 2015.

4) AA total of KRW 10,00,000,000 for a check issued by AA was deposited into the Nonghyup Bank account of Defendant EE on March 6, 2015 (hereinafter “the instant monetary payment act by referring to the aforementioned remittance act against the Defendants of AA”).

D. Plaintiff’s transfer income tax claim

1) AA did not report and pay capital gains tax after the transfer of the instant real estate, and the head of HHH office determined capital gains tax amount as KRW 188,479,584 on May 1, 2016 and notified AA of the fact that he/she will pay capital gains tax by May 31, 2016.

2) As of March 22, 2019, the amount of delinquent capital gains tax of AA as of March 22, 2019, which is close to the date of closing the argument in the instant case, reaches KRW 26,227,230, including additional dues of KRW 77,747,6

[Ground of recognition] Facts without dispute, Gap 1 through 10, 13 through 17, 19, Eul evidence 2

of each statement, the whole purport of the pleading, including the number of each

2. The parties' assertion

A. The plaintiff's assertion

AA, despite the knowledge that the transfer income tax was notified upon the transfer of the instant real estate, donated total of KRW 247,50,000 to the Defendants, who were believed to be one’s own children, and around that time, AA was in excess of obligations. Accordingly, the said gift contract between AA and the Defendants ought to be revoked by fraudulent act, and the Defendants are obliged to return the money donated by each of them to the Plaintiff.

B. The defendants' assertion

The Defendants merely received the repayment of the loan to AA, and there is no donation contract between the Defendants and AA, and the said repayment does not constitute a fraudulent act, and there was no intention to do so against the Defendants.

3. Determination

A. The plaintiff's preserved claim

1) In principle, a claim that can be protected by the obligee’s right of revocation needs to be, in principle, arising prior to the commission of an act that can be deemed a fraudulent act. However, at the time of a fraudulent act, there is a high probability that there exists a legal relationship that is the basis of the establishment of a claim, and that the claim is established in the near future in the near future, and where a claim has been created by realizing the probability in the near future, such claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012). Meanwhile,

21. Additional dues and aggravated additional dues as provided for in Articles 21 and 22 shall not be paid by the time limit for payment of national taxes.

as a kind of incidental tax imposed in the meaning of interest in arrears with respect to the unpaid portion, for which the authority to impose tax has become final and conclusive.

If national taxes are not paid by the due date without due process, the provisions of Articles 21 and 22 of the same Act shall apply.

As a matter of course, the amount of capital gains tax claims are determined.

insofar as such claim is deemed preserved as such, the amount of the transfer income tax shall be deemed to be the amount of such claim.

Afterward, additional charges and increased additional charges incurred until the closing of arguments in fact-finding proceedings are also included (Supreme Court Decision 2007 June 29, 2007

Supreme Court Decision 2006Da66753 Decided 2006

2) With respect to the instant case, the fact that the instant real estate transfer income tax claim against AA, a preserved bond claimed by the Plaintiff, occurred after the payment of the instant monetary amount. However, at the time of the conclusion of the instant sales contract, there was a high probability that the said transfer income tax claim would be established in the near future since the abstract tax liability for the transfer income tax was established at the time of the conclusion of the instant sales contract, or the taxable period was commenced, and thereafter, the probability thereof was realized, and the Plaintiff actually incurred capital gains tax claim by determining and notifying AA of the transfer income tax following the transfer of the instant real estate, and thus, the said transfer income

B. Whether the instant monetary payment constitutes a fraudulent act

1) Legal nature of the instant monetary payment act

If a debtor donated his/her own property to another person in excess of his/her obligation, such act constitutes a fraudulent act, barring special circumstances. However, in cases where the debtor's joint security of other creditors is reduced by repaying his/her obligation to a specific creditor under excess of obligation, the repayment does not constitute, in principle, a fraudulent act unless the debtor, in collusion with some creditors, made performance with the intent to prejudice other creditors. However, in cases where the creditor seeking revocation of fraudulent act claims that the debtor's monetary payment to the beneficiary was a donation of the debtor's existing obligation, the beneficiary is not a denial of the creditor's assertion, and as seen in the above legal principle, there is a significant difference between the debtor's monetary payment and the creditor's assertion and proof depending on whether the debtor's monetary payment is a donation or repayment. Accordingly, it should be proved that the above monetary payment constitutes a donation to be recognized as a fraudulent act, or that the creditor's intent to harm the creditor, etc. is proved as above (see, e.g., Supreme Court Decision 2005Da286867, May 27, 2007).

In full view of the following circumstances, it is reasonable to view that the act of paying the instant money to the Defendants constitutes a gift in full view of the following circumstances, which are acknowledged by the health stand, the evidence mentioned above, the evidence stated in Gap's evidence Nos. 19 through 26, and Eul's evidence Nos. 19 through 1, 3, and 8, and the purport of the entire pleadings (hereinafter "AA and the defendants' donation contract").

① The Defendants are children of the AA, or are in close vicinity to the AA.

② On October 9, 2014, AA paid KRW 100,000,00 as the down payment of the sales contract for the instant real estate into the account of community credit cooperatives, and transferred KRW 59,00,000,000 from October 13, 2014 to the account of Defendant CCC. In addition, AA deposited KRW 279,798,000, out of the outstanding money received as the remainder of the sales contract for the instant real estate on December 24, 2014, on December 26, 2014, AA deposited KRW 279,798,000,00 in the Agricultural Cooperative account, and withdrawn KRW 10,000,000 in the check on December 26, 200, 350,000 in the aggregate to Defendant CCC on the same day, and transferred it to each of the above Defendants B and B on April 30, 2005, respectively.

③ The check number of Defendant BB, DD, and EE deposited in each of their accounts between December 26, 2014 and March 6, 2015 is the check number of Chapter 9 (total face value of KRW 90,000,000) in Chapter 10 (total face value of KRW 100,000).

④ The Defendants asserted that the act of paying the instant money was merely a debt owed to the Defendants of AA, and that there was a non-prosecution disposition on suspicion of violation of the Punishment of Tax Evaders Act against AA and the Defendants, and thus, the act of paying the instant money does not constitute a fraudulent act. However, the administrative trial or civil trial does not necessarily have to be bound by the prosecutor’s non-prosecution disposition, and the court can recognize the facts opposed to the above by free evaluation of evidence (see, e.g., Supreme Court Decision 87Nu493, Oct. 26, 1987). The Defendants asserted that the Defendants lent the money to AB prior to the act of paying the instant money, but, in light of the fact that the Defendants had been registered as a rental business operator and received rent of KRW 2,60,00,00 from the National Tax Service for the instant real estate, it was difficult to find that the Defendants were not aware of the fact that the Defendants had borrowed money from the National Tax Service for a considerable period of time to use the money.

2) Whether a fraudulent act was committed

In case where a debtor continuously disposes of several properties, in principle, it shall be judged whether each act causes insolvency. However, when there are special circumstances to regard the series of acts as a single act, it shall be determined as a whole. In this case, in determining whether there are such special circumstances, the other party to the disposition is the same, whether each disposition is close to time, whether the other party to the disposition has special relations with the debtor, and whether the other party is the same as the other party's motive or opportunity for each disposition (see Supreme Court Decision 2005Da7795, Jul. 22, 2005).

Examining the instant case in light of the aforementioned legal principles, as seen earlier, the Defendants were children or were satisfed of AA, and the instant donation contract was made in close vicinity of time and almost the opportunity for the Defendants, who were satisfing with their children, was rarely identical. As such, the instant donation contract is a single fraudulent act en bloc, and thus, it is reasonable to determine whether AAA is insolvent as of March 6, 2015 when a series of fraudulent acts was completed. However, according to the respective entries and arguments in evidence Nos. 2 through 4 and 12, around December 30, 2014, it is reasonable to deem AA as being active property of KRW 83,381 [3,380 (356-0986-3** 93)], the balance of deposit money *73,188 won (194-1040-105) and the total amount of deposit money of KRW A-20 (30-105-1,2984].

C. The debtor's intent to cause harm and the defendants' bad faith

1) If the obligor’s act of transferring property to a third party constitutes a fraudulent act subject to obligee’s right of revocation, the beneficiary’s bad faith is presumed (see Supreme Court Decision 87Meu1380, Apr. 25, 1998). As seen earlier, AA knew that the instant gift contract constitutes a fraudulent act and thereby constitutes a fraudulent act, AA knew that it would thereby prejudice the general creditors, and further, the Defendant’s bad faith, a beneficiary, is presumed.

2) On this basis, the Defendants believe that AA had believed that no capital gains tax was imposed on the sales of one house per elderly person. The Defendants asserted to the effect that the instant donation contract was unaware of being a fraudulent act on the grounds that AA received repayment of debt from the elderly person, and that the Defendants were subject to a disposition that was not suspected of violating the Punishment of Tax Evaders Act, and that the instant donation contract was unaware of being a fraudulent act.

In a lawsuit seeking revocation of a fraudulent act, the beneficiary has the burden of proving that the beneficiary was the fraudulent act. In this case, there should be objective and acceptable evidence, etc. in recognizing that the beneficiary was the bona fide person at the time of the fraudulent act, and it should not be readily concluded that the beneficiary was the bona fide person at the time of the fraudulent act only with the unilateral statement of the debtor or a statement that is merely a third party's abstract statement (see Supreme Court Decision 2004Da61280, Jul. 4, 2006).

In addition to the following circumstances that the nature of the act of paying the instant money constitutes donation, as seen earlier, the evidence submitted by the Defendants alone is difficult to acknowledge the Defendants’ good faith, and there is no other evidence to acknowledge it. In addition, the following circumstances are as follows: ① AA has paid capital gains tax when selling a house on July 9, 2013, i.e., Daegu ** Dong **** Dong *** in selling a house on the ground; ② AAA has reported as a rental business operator and paid a value-added tax on the instant real estate, and appears to have been well aware of the taxes related to the real estate.

Therefore, the above assertion by the Defendants cannot be accepted.

D. Sub-committee

As long as the instant monetary act constitutes a fraudulent act, the Plaintiff, a creditor of AA, can seek revocation thereof. Since the Plaintiff’s preserved claim exceeds KRW 247,500,00,000, which is the total amount paid to the Defendants under the instant gift agreement, the Plaintiff’s preserved claim is concluded between AA and Defendant BB on December 30, 2014, and KRW 50,000,000 concluded on December 31, 2014, and KRW 50,000,000, AA and Defendant CCC concluded on October 13, 2014; and KRW 38,50,000,000, which was concluded on December 26, 2014 between A and Defendant DD and Defendant DD; and

3. 10,00,000 won concluded on March 6, 2015 between AA and Defendant EE; 10,000,000 won concluded on March 6, 2015

The contract for each gift of the Board shall be revoked in its entirety, and the defendants shall restore to its original state the amount they received from AA and each of them to their original state, which shall be fully repaid from the day following the day this judgment becomes final and conclusive to the plaintiff.

There is an obligation to pay damages for delay calculated at the rate of 5% per annum under the Civil Code.

4. Conclusion

Thus, the plaintiff's claim against the defendants shall be accepted on the grounds that all of the claims are reasonable.

shall be determined as above.