Ansan-Support 2013 Gohap102553 ( October 28, 2015)

(1) The act of transferring real estate, which is the only property of a delinquent taxpayer, in return for consolation money for divorce, in a disguised manner

(1) As indicated in the judgment of the first instance, the Plaintiff, the former spouse of the Plaintiff, filed for the registration of ownership transfer of real estate, the sole property of which is the Plaintiff. However, the Plaintiff is the spouse of the Plaintiff who is divorced and received the compensation for a divorce lawsuit, but constitutes a fraudulent act by commercializing and transferring real estate.

Article 30 of the National Tax Collection Act Revocation

2014Na2034599 Revocation of Fraudulent Act

Korea

KimA

Ansan support Decision 2013Gahap102553 decided August 28, 2014

May 14, 2015

June 25, 2015

1. The sales contract concluded on July 5, 201 between the Defendant and B on each of the real estate listed in the separate sheet shall be revoked.

2. The defendant will implement the procedure for cancellation registration of each transfer of ownership completed on July 6, 201, the receipt of No. 91514, with respect to each real estate listed in the separate sheet to thisB.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Disposition of imposition of transfer income tax, etc. on the Plaintiff BB

(1) On May 13, 201, this B sold OO-dong 33-9 large scale 192 square meters (hereinafter referred to as “33-9 land”) to KimCC on its own, and completed the registration of transfer of ownership under the name of KimCC on June 7, 2011, but did not report the transfer income tax,” and (2) thereafter, the head of Yangyang Tax Office under the Plaintiff confirmed the fact of non-reporting of the transfer income tax, and decided and notified this B of the decision on September 1, 2012, the transfer income tax OOO(hereinafter referred to as “the transfer income tax in this case”) to this B. (3) This B is liable to pay national taxes in total as follows as of October 17, 2013, including the transfer income in this case and its additional charges:

Items of Taxation

Reversion

Date of Notification

Deadline for payment

The notified tax amount (cost)

Amount in arrears ( won)

1

Comprehensive Real Estate Tax

2007

March 2, 2008

March 31, 2008

OOO

OOO

2

Comprehensive Real Estate Tax

208

February 1, 2009

February 28, 2009

OOO

OOO

3

Transfer Income Tax

206

June 1, 2009

June 30, 2009

OOO

OOO

4

Global Income Tax

209

September 1, 2010

September 30, 2009

OOO

OOO

5

Miscellaneous transfer income

2011

February 1, 2011

March 15, 2011

OOO

OOO

6

Transfer Income Tax

2011

September 1, 2011

September 30, 2011

OOO

OOO

Total

OOO

OOO

(b)the relationship between the B and the Defendant, and the disposition by the B.

“1) This B and the Defendant: (a) married on May 31, 1976 and married 1 South and North her husband and wife under the law; (b) divorced on January 17, 2006 through mediation; (c) the content of the Kibu District Court 2005Dhap184 mediation protocol (hereinafter “instant mediation protocol”) prepared at the time of divorce is as follows; (d) theseB shall be paid to the Defendant as division of property, on condition that it shall be paid KRW OOOO and KRW OOOO by March 31, 206 and by October 31, 2006. If this Section is delayed, the compensation for delay shall be paid in addition to the amount calculated at the rate of 1.5% per month from the date following each due date until the due date.

3. If the compensation is paid before October 31, 2006 with respect to the land 33-9, B shall preferentially use it for the repayment of the obligation to the defendant as described in paragraph 1.

On February 5, 2008, the Defendant received compensation for part of 33-9 square meters (33-20 square meters, 221 square meters, OO-dong 33-20 square meters, O-dong 33-20 square meters) from the O-si on the application of this BB.

(2) On July 5, 2011, this B entered into a sales contract with the Defendant to sell each of the real estate listed in the separate sheet (hereinafter referred to as “each of the instant land”) for the purchase price to OOO won (hereinafter referred to as “the instant sales contract”), and agreed as follows: 1. The buyer agreed as follows: (a) on August 19, 2003, received on August 19, 2003; and (b) on April 16, 2004, received No. 52835 on April 16, 2004, only the principal debt shall be succeeded to only the maximum debt amount and included in the sales price.

2. A goldOOOO which was made by the purchaser of April 8, 2008 at OOO-dong 33-9 at OO-dong 47946 on OO-dong 47946 shall be disposed of by offsetting the claim against the purchase price of this land.

3. The buyer is liable for provisional attachment No. 2009Kadan2457.

4. If a separate claim of the seller occurs before the buyer transfers ownership, the seller shall be liable for it.

5. The lease deposit incurred from the above building on the land is responsible for only goldO members.

(3) On July 6, 201, the following day after the conclusion of the instant sales contract, B entered into the instant sales contract with the Defendant on July 6, 201, the registration of ownership transfer (hereinafter “each of the instant registration of ownership transfer”) was completed under Article 91514 for each of the instant land.” (4) Thereafter, the Defendant submitted a written statement of report on the payment of the purchase price to the Defendant on February 13, 2012 at the request of the head of the OOO to submit relevant data in accordance with the report of real estate transactions by the head of the OO.

1. The Supreme Court shall, on August 19, 2003, decide to assume the principal amount out of the purchase price out of the maximum debt amount No. 59191, which is set up on the subject land of this case, set forth in a special contract, and the maximum debt amount No. 52835, Apr. 16, 2008, which is set up on the subject land of this case, as part of the purchase price.

2. It is replaced by cancelling the creation of a collateral security by making out of the purchase price a part of the purchase price, a claim that a creditor, who is the buyer stipulated in a special contract, shall be entitled to receive as a creditor, as the buyer, as the buyer, for the establishment of a collateral security at OO-Gu O-dong 33-9, O-dong, No. 47946, Apr. 8, 2008, except for the maximum maximum amount of OOO won paid as the buyer’s land.

3. On April 29, 2009, the amount of a claim for provisional attachment for support to the Government District Court and the High Court on March 29, 2009, as stated in a special agreement on a sales contract, shall be assumed as part of the purchase price.

4. A lessee shall assume the obligation to assume part of the purchase price with respect to the OO members or OO members of the lessee;

5. As a result of the adjustment of divorce and consolation money claim, the principal and the interest and the principal and the interest and the interest and the interest and the interest and the interest and the principal and the interest and the interest 15% per annum (based on the adjustment clause) stated in the monetary loan for consumption prepared on April 5, 2008 shall be set off against the principal and interest and the interest and interest 000 won in total as the total of the sales amount and the total of the 000 won in the sales amount, in 27 months in the number of delayed months.

6. On December 28, 2010, 2010, and on June 12, 2009, at the time of purchase due to seizure, the owner of the seized property, he/she seeks to assume the obligation to pay part of the purchase price to the disposal agency of the right-holder state, as part of the purchase price.

7. Conclusion: The total purchase price is 1+2+3+4+5 +6, the amount of OOOwon + OOOO + + OOO director + + OOOO director + + OOOO director.

C. The financial status of the BB at the time of the instant sales contract

(1) At the time of July 5, 201, the date of the conclusion of the instant sales contract, the active property of the BB was due to the market value of each of the instant land owned by the Plaintiff.

(2) 반면 이 사건 매매계약 체결일인 2011. 7. 5. 당시 이BB의 소극재산은, 적어도 ① 피고가 자인한 이BB의 채무 합계 OOOO원[=㉮ 이BB의 피고에 대한 채무 OOOO원{= ㉠ 이 사건 조정조서상의 채무 중 미지급 원리금 OOOO원 + ㉡ 33-9 토지에 설정된 피고 명의의 근저당권(채권최고액 OOOO원)의 피담보채무 OOOO원} + ㉯ 이 사건 매매계약을 체결하면서 피고가 인수하였다고 주장하는 이BB의 제3자에 대한 채무 OOOO원{= ㉠ 이 사건 각 토지에 설정된 OODDD 명의의 근저당권(각 채권최고액 OOOO원)의 피담보채무 중 OOOO원 + ㉡ 이 사건 각 토지에 등기된 의정부지방법원고양지원의 2009. 4. 29.자 가압류금액의 원리금 OOOO원 + ㉢ 이 사건 각 토지의 임차보증금 OOOO원 및 OOOO원 + ㉣ 이 사건 각 토지에 등기된 OO구 및 국외 국세체납으로 인한 압류금액 OOOO원)}], ② 이 사건 각 부동산에 대한 국세체납액(가산금 제외) OOOO원 등 합계 OOOO원에 달하였다.

Facts without any dispute, Gap's 1 through 5, Eul's 1 through 6, 13 (including additional numbers), and the purport of the whole pleadings.

2. Determination on this safety defense

A. The defendant's assertion

After the conclusion of the instant sales contract, the Plaintiff decided and notified this case’s transfer income tax to B on September 1, 201. Furthermore, in light of the fact that the Plaintiff had already been aware of the fact that the instant sales contract was concluded at the time, and that the Plaintiff had been in a position to confirm the amount of national taxes in arrears and the officially assessed individual land price of each of the instant land, etc. of B, the Plaintiff appears to have been well aware of the fact that the instant sales contract constituted fraudulent act. Accordingly, the instant lawsuit is unlawful as a lawsuit filed on November 12, 2013, one year after the Plaintiff, a creditor, was aware of the cause for revocation.

B. Determination

“The date when the obligee becomes aware of the cause of revocation in the exercise of the obligee’s right of revocation” means the date when the obligee becomes aware of the existence of the requirement of the obligee’s right of revocation, i.e., the date when the obligor becomes aware of the fact that the obligee committed a fraudulent act with the knowledge that the obligee would prejudice the obligee. Thus, the mere fact that the obligor was aware of the act of disposal of the property is insufficient, i.e., that the juristic act is an act detrimental to the obligee, i., that is, the joint security of the claim is insufficient, or the joint security already insufficient, so that the Plaintiff could not fully satisfy the obligor’s claim, and further, had the intent to harm the obligor (see, e.g., Supreme Court Decision 2001Da11239, Nov. 26, 2002). Meanwhile, the Plaintiff did not know of the present status of the Plaintiff’s property in the sale contract as well as the present status of the obligee’s right of revocation.

3. Judgment on the merits

(a)the existence of preserved claims;

(1) National tax bonds except the transfer income tax of this case

When a creditor exercises his/her right of revocation, in principle, he/she cannot exercise his/her right of revocation in excess of his/her own claim amount, and at this time, the creditor's claim amount includes the interest or delay damages incurred after the fraudulent act and the time of closing argument in fact-finding proceedings. Meanwhile, the additional dues provided for in Article 21 (1) and (2) of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of interest on unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date for payment by the due date, the additional dues naturally accrue pursuant to Article 21 (1) and (2) of the same Act and the amount thereof is determined. Therefore, insofar as the transfer income tax claim is recognized as the preserved claim of the right of revocation, the amount of the transfer income tax includes the additional dues accrued after the fraudulent act and the time of closing the pleadings

As seen earlier, the sum of each of the above national tax claims, including the additional dues, was established before July 5, 201, which was the date of the instant sales contract. Thus, the sum of the items in paragraph (1) through (5) above is the preserved claim for revocation of fraudulent act.

(2) Transfer income tax claim of this case

채권자취소권에 의하여 보호될 수 있는 채권은 원칙적으로 사해행위라고 볼 수 있는 행위가 행하여지기 전에 발생된 것임을 요하지만 그 사해행위 당시에 이미 채권성립의 기초가 되는 법률관계가 발생되어 있고, 가까운 장래에 그 법률관계에 터잡아 채권이 성립되리라는 점에 대한 고도의 개연성이 있으며, 실제로 가까운 장래에 그 개연성이 현실화되어 채권이 성립된 경우에는 그 채권도 채권자취소권의 피보전채권이 될 수 있다 할 것이고, 이러한 법리는 조세채권의 경우에도 그대로 적용된다고 할 것이므로, 사해행위 당시 아직 구체적인 경정결정 등에 의한 부과처분이 이루어지지 않았다고 하더라도 조세채권의 발새엥 관한 기초적 법률관계가 발생하였고, 가까운 장래에 채권이 성립할 고도의 개연성이 있는 상태에서 실제로 경정결정 등의 일련의 절차를 거쳐 조세채권이 구체적으로 성립하였다면, 그와 같은 조세채권은 채권자취소권의 피보전채권이 될 수 있다(대법원 2001. 3. 23. 선고 2000다37821 판결 등 참조). 또한 자산의 양도차익에 대한 소득세는 과세표준이 되는 금액이 발생한 달(자산의 양도일이 속하는 달)의 말일에 납부의무가 추상적으로 성립하는 것으로서 자산양도자의 주소지 관할 세무서장은 자산양도차익예정신고 또는 자산양도차익예정신고 자진납부를 한 자에 대하여는 신고 또는 자진신고납부가 있은 날로부터 1월 이내에 자산양도차익예정신고를 하지 아니한 자에 대하여는 즉시 양도차익과 세액을 예정결정하고 소득세법시행령 제183조를 준용하여 과세표준과 세율, 세액 기타 필요한 사항을 납세고지서에 기재하여 당해 거주자에게 통지함으로써 납세의무가 구체적으로 확정되는 것으로 해석된다(대법원 1993. 3. 23. 선고 92누7887 판결 등 참조).

In the instant case, the fact that B transferred 3-9 land to B on June 7, 201 is as seen earlier. As such, on June 30, 201, the last day of the month to which the said transfer date belongs, the liability to pay capital gains tax was established abstractly and there was a basic legal relationship as to the creation of the instant transfer income tax claim. This BB failed to report and pay capital gains tax after the transfer of each of the instant land, and thus, in the near future at the time of the instant sales contract, B bears specific tax liability for the instant transfer income tax, which is the capital gains tax evasion amount, and the instant transfer income tax claim corresponding to the Plaintiff was established. In fact, it was highly probable that the Plaintiff was able to do so by making the instant disposition of imposition of capital gains tax against B on September 1, 2012, and thus, it constitutes a creditor’s right to revoke the instant transfer income tax claim, including additional dues, as seen earlier.

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

(1) In cases where the debtor's act of reducing liability property causes or deepens the shortage of common security for general creditors, whether the act constitutes a fraudulent act subject to revocation, the weight of the subject matter of the act in the whole responsible property of the debtor, the degree of insolvency, the reasonableness of the act in question, which is the economic purpose of the juristic act and its realization means, the reasonableness of the act in question, the duty to perform the act, and the degree of awareness of the parties as to the risks of lack of common security such as the existence of a collusion between the debtor and the beneficiary, the final determination shall be based on whether the act can ultimately be seen as an act detrimental to general creditors (see Supreme Court Decision 2007Da2718, Sept. 30, 201). In addition, if the debtor in collusion with one of the creditors who had already been absent in excess of liability and sold important property owned by the debtor with the intention to obtain satisfaction of claims, and if the price of the act constitutes a set-off of the existing creditor's claim and the sale price of the property 94.

(2) On July 5, 201, the date of the conclusion of the sales contract of this case, BB, as of July 5, 201, the market price OB's active property was due to each of the instant land of this case. However, the small property was at least OB's total debts to the Defendant and third parties and was in excess of its debts, as seen above. The Defendant agreed to offset the total amount of the purchase price against the Defendant's existing claims or to substitute the acquisition of the liabilities to the third parties of this case to the Defendant. In addition, considering the above evidence and facts, the Defendant did not have any of the following circumstances, i.e., the Plaintiff's assertion that the Plaintiff acquired the obligation of this case under the name of 100,000 won after the conclusion of the sales contract of this case under the name of 200,000 won, and the Defendant did not have any of the Defendant's assertion that the obligation of this case was paid to the Defendant's 130,000 won of the total debt of this case.

C. Judgment on the defendant's assertion

(1) In the case of the division of property, even if the division of property becomes insolvent by the division of property, and the division of property is so excessive that it would not be reasonable contrary to the purport of Article 839-2(2) of the Civil Act, and it does not constitute a fraudulent act, unless there are special circumstances to recognize that the division of property is the disposal of the property made by means of the division of property (see, e.g., Supreme Court Decision 2004Da58963, Jan. 28, 2005). The sales contract of this case is deemed to have been concluded for the repayment of the division of property to be paid by B while it is divorced with the Defendant, and thus, the sales contract of this case does not constitute a fraudulent act.

On the other hand, the above Supreme Court precedents which the defendant invoked are applicable to the cases that are applied to the cases where the property division itself becomes insolvent by the property division itself due to the property division itself. As in this case, the issue of whether the property division itself constitutes a fraudulent act is not an issue, but it is not applicable to the cases where the property division itself is insolvent by a separate sales contract that was made in the course of performing the duty to divide the property, and it is not a matter of whether it constitutes a fraudulent act under the sales contract. Therefore, the defendant's argument is

(2) Determination on the bona fide assertion

The defendant asserts that he is a bona fide beneficiary since he was unaware of the fact that the BB was in excess of his obligation at the time of the contract of this case.

(2) On the other hand, inasmuch as the beneficiary's bad faith is presumed in a lawsuit seeking cancellation of a fraudulent act, the court below held that the beneficiary's good faith is a burden of proving his/her own good faith. In such a case, whether the beneficiary was bona fide or not should be determined reasonably in light of logical rules and experience, taking into account the following circumstances: (a) the obligor and beneficiary's relationship; (b) the circumstances leading up to the act of disposal between the obligor and the beneficiary; (c) whether there are objective materials supporting the act of disposal; and (d) the circumstances after the act of disposal, etc.; and (e) whether the Defendant's assertion that there was a bad faith for the beneficiary at the time of this case's fraudulent act to recognize that the beneficiary was bona fide (see, e.g., Supreme Court Decisions 2007Da74621, Jul. 10, 208; 2006Da64627, Apr. 26, 2006).

Therefore, the sales contract concluded on July 5, 201 between the Defendant and B on each of the instant land should be revoked as a fraudulent act, and the Defendant shall be obliged to cancel each of the instant registration of transfer to B due to restitution to its original state.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.