Whether a fraudulent act is committed

The real estate sales contract between the delinquent taxpayer and the defendant constitutes a fraudulent act, and the delinquent taxpayer was aware that such act was prejudicial to the general creditor, and since the defendant's bad faith is recognized as a beneficiary, the real estate sales contract constitutes a fraudulent act.

Article 30 of the National Tax Collection Act

Seoul Northern District Court 2017Gahap23213 Revocation of Fraudulent Act

Korea

○○ and one other

208.23.20

November 08, 2018

1. As to the real estate listed in [Attachment 1] List:

A. Revocation of the sales contract concluded on September 30, 2016 between Defendant AA and CCC; and

B. Defendant AA’s receipt on October 4, 2016 to CCC on Seoul Northern District Court’s Dobong Registry Office

64771 shall comply with the procedure for the cancellation of the registration of transfer of ownership.

2. As to each real estate listed in the Schedule of Attached Real Estate No. 2:

A. Revocation of the sales contract concluded on September 30, 2016 between Defendant BB and CCC; and

B. Defendant BB shall implement the procedures for registration of cancellation of each transfer of ownership, which was completed by the Jeju District Court No. 108297, Oct. 4, 2016, to CCC.

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. Grounds for imposing capital gains tax on the Plaintiff CCC

1) On June 10, 1994, the CCC was awarded a successful bid for each of the 79,417/106,974 shares in the same area of the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, each of 79,417/106,97 shares in each of the 79,417/106,97 (hereinafter “instant acquired land”).

2) On August 10, 2015, CCC transferred each of the lands listed below (hereinafter “instant transferred land”) to DDR in KRW 13,423,165,730 due to the acquisition by consultation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor.

(Omission of Table)

3) On October 31, 2015, CCC reported and paid capital gains tax of KRW 1,348,170,279 on the ground that the transfer value of the instant transferred land cannot be confirmed at the time of acquisition, and the conversion value of KRW 7,864,667,530 was KRW 1,348,170,279.

4) On November 8, 2016, the Plaintiff determined and notified the acquisition value of the instant transferred land as KRW 177,986,880 on the ground that the successful bid price of the instant acquired land was KRW 227,00,000,00, and determined and notified the transfer income tax of KRW 2,487,834,520 (including additional taxes) to CCC.

B. Disposition by CCC

1) On September 30, 2016, the CCC entered into a sales contract on September 30, 2016 on the real estate listed in the separate sheet No. 1 (hereinafter referred to as “first real estate”) with Defendant AA related to money (hereinafter referred to as “instant first sale contract”) with Defendant AA on October 4, 2016, and completed the registration of ownership transfer listed in Section 1(b) of the order to Defendant AA on October 4, 2016 (hereinafter referred to as “instant first transfer”).

2) On September 30, 2016, the CCC concluded a sales contract on September 30, 2016 with respect to each of the real estate listed in the separate sheet No. 2 (hereinafter referred to as “second real estate”) owned by Defendant BB (hereinafter referred to as “instant second sales contract”) and completed the registration of transfer of ownership listed in the separate sheet No. 2B (hereinafter referred to as “second transfer of ownership”) on October 4, 2016 to Defendant BB.

[Ground of recognition] Unsatisfy, entry of Gap 1 to 10 evidence (if any, a tentative number)

(c) The purport of the whole pleadings;

2. Determination

(a) Occurrence of preserved claims;

1) In principle, a claim subject to preservation of a fraudulent act is required to be arising prior to the commission of an act that is deemed a fraudulent act. However, it is highly probable at the time of the fraudulent act that there has already been a legal relationship that serves as the basis of the establishment of a claim, and that the claim has been established in the near future in the near future. In cases where a claim has been created due to its realization 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 2011Da76426, Feb. 23, 2012).

2) As seen in the facts based on the facts, each of the instant sales contracts (hereinafter “each of the instant dispositions”) took place on September 30, 2016, which was before the Plaintiff’s claim against CCC becomes final and conclusive. However, the transfer income tax following the transfer of real estate by CCC is abstractly established on the last day of the month in which the amount constituting the tax base pursuant to Article 21(2)2 subparag. 1 of the Framework Act on National Taxes accrues. As such, it was established upon the lapse of August 31, 2015, which was the last day of August 2015, the transfer of ownership of the instant transferred land.

In addition, as CCC underreporting on October 31, 2015, its acquisition value was not the actual successful bid price, it was highly probable that capital gains tax based on the actual successful bid amount would be finalized in the near future. In fact, the Plaintiff determined and notified capital gains tax of 2,487,834,520 on November 8, 2016 as the payment period on November 30, 2016. In light of these circumstances, the above taxation claim against CCC of the Plaintiff is the preserved claim against the fraudulent act revocation lawsuit.

(b) Insolvent of CCC;

(a) Active property: Total amount of KRW 1,220,573,147;

(Omission of Table)

2) Small property: Total sum of KRW 2,487,834,520

(Omission of Table)

[Ground of recognition] Facts without dispute, entry of Gap 5, 12, and 13 evidence, the purport of the whole pleadings

C. Establishment of fraudulent act

The act of a debtor in excess of his/her obligation to sell real estate and change it into money easily for consumption is a fraudulent act against a creditor, unless there are special circumstances where the sale thereof takes place at a reasonable price to appropriate for a legitimate repayment to some creditors (see Supreme Court Decision 2010Da41850, Jul. 26, 2012). The act of a CCC disposing of the first and second real estate to Defendant BB, one of its own money, and Defendant BB, South Korea, under the above excess of its obligation, constitutes a fraudulent act unless there are special circumstances.

D. Determination as to the defendants' assertion

1) Whether the CCC had an intention to harm

A) The assertion

227 million won as stated in the successful bid approval was too low in light of the officially announced value of the land acquired in this case. CCC believed that it was justifiable to report the conversion acquisition value. The contact point at which CCC reported the transfer income tax reported by the Plaintiff was wrong is after each of the instant disposal dispositions. As such, CCC did not intend to purchase at the time of each of the instant disposal dispositions.

B) Determination

(1) The intention of deception refers to that the obligor should not harm the obligee when doing a juristic act. Here, the term “inception” does not mean the intent or intent, but is sufficient for a simple perception. Ultimately, the intention of deception is to recognize the fact that there is a risk that the obligee would be difficult to receive payment due to a lack of joint security, and such recognition is sufficient in relation to the general obligee and does not require the recognition that it would prejudice a specific obligee (see Supreme Court Decision 2007Da63102, Mar. 26, 2009).

(2) In light of the following circumstances, which are acknowledged by comprehensively considering the overall purport of the pleadings in the statements in Gap evidence Nos. 1, 3, 43 and Eul evidence No. 2, it can be sufficiently recognized that the CCC was aware that the land acquired in this case was awarded in KRW 227,00,000 during the instant auction procedure on June 10, 1994.

① The written decision on permission for the successful bid for the land acquired in this case contains KRW 227,00,000, and the written decision on permission for the successful bid was kept in a court. Thus, it is difficult to deem that the Defendants’ assertion is insufficient solely on the grounds that the written decision on permission for the successful bid exists. In addition, there is no documentary evidence necessary to confirm the actual transaction price at the time of transfer or acquisition or that there is insufficient material part.

② On June 3, 1995, the CCC paid acquisition tax and special rural development tax on the land acquired in this case, and the taxable object is described as “GG △△△△△△△△△△, July 11, 199,” and the tax base as “27,000,000 square meters”, and therefore, it is consistent with the successful bid price stated in the written decision on granting a successful bid.

③ In the instant case where: (a) whether the said local tax payment was made against 79 square meters out of the land acquired in the instant case; (b) there was no details on which CCC paid local tax regarding the acquisition of the instant land in addition to the said local tax payment; (c) there was no special reason for CCC to pay local tax only with respect to 79 square meters out of the land acquired in the instant case; and (d) FF market replyed to the fact that the taxable area indicated as 79 square meters in the tax information in the Gwangju District Court 2017 Gwangju Metropolitan Government for the revocation of the corrective portion of the capital gains tax, the said local tax

(3) In addition, considering the following circumstances acknowledged by comprehensively considering the statements in Gap evidence 33, 35, and 43 and the results of the inquiry of the fact-finding inquiry about EE, since CCC appears to have sufficiently known the under-reported facts in filing a return of capital gains tax on the land acquired in this case, it is difficult to deem that the corrective disposition of capital gains tax could not be anticipated, and therefore, it can be presumed that there was an intention to have been an intentional act of leaving himself in excess of his obligation by performing each of the dispositions in this case.

① The certified tax accountant EE, acting on behalf of the CCC for a report of capital gains tax, shall verify a certified copy of the real estate register of the transferred land of this case and inform CCC that CCC should report the acquisition land of this case at an auction price, and shall be issued and submitted with documents verifying the successful bid price in the court and viewing.

② CCC reported the conversion price on the ground that the FF District Court issued a written decision to grant a successful bid or issued a certificate of payment by FF viewing, which could verify the successful bid price of the land acquired in this case, but could not verify the actual transaction price without such certificate.

③ Although CCC had passed at least 20 years after the transfer of the land that was directly awarded by it, CCC appears to have been able to memory the approximate successful bid price. Nevertheless, CCC claimed that the highest bid price is 96,678,988,382, which is too much different from the successful bid price of KRW 227,00,00,000, was the actual transaction price and filed a request for correction of capital gains tax.

④ The CCC asserts to the effect that there are justifiable grounds since it paid the tax at the conversion price at the time of transfer by consultation with the same land (on November 24, 2014). According to each of the evidence Nos. 28,29, the Plaintiff transferred 117/106,00 of the acquired land at the FFF on July 8, 2014 on the ground of consultation and transfer of 1,106,974 shares among the acquired land at the time of FF on the ground of acquisition of public land at the time of FF on November 24, 2014, the fact that the transfer income tax was returned and paid at the conversion price rather than the successful bid price at the time of FFF on the same ground is recognized. However, since the instant disposition was not an integrated investigation with the Plaintiff, but an integrated investigation with the Seoul Regional Tax Office on the acquisition price at the time of 2015, the acquisition price at each of the instant land can not be determined within the exclusion period of imposition of 201.

⑤ The Defendant asserts to the effect that, since the real estate acquired in the 90s was a practice to recognize the acquisition value as the conversion value, it was difficult for CCC to expect that the acquisition value should be recognized as the successful bid value rather than the conversion value at the time of imposing capital gains tax. In full view of the aforementioned evidence and the overall purport of the arguments, the fact that HHHH-free document reviewed the transfer income tax report by CCC and prepared a written response to the purport that the public official in charge of the HH-free document acquired in the 90s in Seoul regional tax office with regard to the above audit of the Seoul regional tax office is giving recognition of the conversion value in practice is recognized. However, the above written reply is merely limited to the fact that the public official in charge indicates the circumstance and defense that the public official in charge recognizes his negligence, and that the real estate acquired in the 90s only by the above written reply was a public official in charge of property tax and work experience for about eight months, it is difficult to acknowledge that there was a practice to recognize

2) A bona fide beneficiary defense

A) Defenses

The Defendants are bona fide beneficiaries who did not know the fact that they would prejudice other general creditors of the CCC at the time of each of the instant dispositions.

B) Determination

(1) Although a creditor who asserts revocation of a fraudulent act bears the burden of proving that the debtor is bad faith in a lawsuit seeking revocation, the beneficiary or subsequent purchaser is not a creditor with the burden of proving that the debtor is bad faith, but is a beneficiary or subsequent purchaser. If the debtor’s act of disposal of the debtor’s property constitutes a fraudulent act, it shall be based on objective and apparent evidence, etc. in recognizing that the beneficiary or subsequent purchaser was acting in good faith at the time of the fraudulent act or the preceding purchase, and it shall not be readily concluded that the beneficiary or subsequent purchaser was acting in good faith at the time of the fraudulent act or the preceding purchase solely on the grounds that the debtor or the beneficiary’s unilateral statement or the third party’s statement is merely the abstract statement (see, e.g., Supreme Court Decision 2014Da237192, Jun. 11, 2015).

(2) There is no dispute between the parties, or in light of the following circumstances acknowledged by adding the purport of the entire pleadings to the statements in the evidence Nos. 7 and 13, the evidence submitted by the Defendants alone is insufficient to acknowledge that the Defendants acted in good faith at the time of each of the instant dispositions, and there is no other evidence to recognize otherwise.

① There was a type of financial transaction between the CCC and the Defendants. In particular, Defendant BB received KRW 500,000 per month from CCC until September 1, 2015. It is difficult to deem that the Defendants did not know at all about the economic situation of CCC.

② On September 30, 2016, the CCC sold to Defendant AA real estate at KRW 440 million. On the same day, the CCC concluded a lease agreement with JJ, the wife of the CCC, with the lease deposit of KRW 22 million, the lease deposit of KRW 7,00 square meters for the remainder of KRW 100 square meters, and the lease deposit of KRW 30,000 with the CCC. However, even if the CCC sold the real estate 1, it is difficult to find out the grounds for disposal of the real estate in light of the CCC’s property size, and even if Defendant AA’s assertion that the lease agreement was concluded for a long period of time, it is difficult to conclude a lease agreement with the CCC as well as to conclude a lease agreement with the 1,00 square meters, which is part of the above apartment real estate, without being aware of the fact that Defendant CCC’s purchase and sale of the real estate in light of the fact that it is difficult to conclude the lease agreement with the 1,0000 square meters.

③ Meanwhile, the beneficiary’s bad faith refers to the awareness that a disposal act constitutes a fraudulent act in the relationship with the general creditors, and the disposal act is not limited to the form in which there is a conspiracy false representation or no actual transaction. Thus, as claimed by Defendant BB, it cannot be deemed that Defendant BB acquired the real estate of No. 2 as one’s own funds or exercised the status as a lessor, it does not mean that it was in good faith at the time of the fraudulent act.

(e) Revocation of and reinstatement from fraudulent acts;

Each of the instant dispositions constitutes a fraudulent act, and thus, each of them is revoked, and as such, Defendant AA owes the registration procedure for cancellation of ownership transfer registration to CCC and Defendant BB owes the duty to implement the registration procedure for cancellation of ownership transfer registration to CCC.

3. Conclusion

The plaintiff's claim against the defendants shall be accepted on the grounds of all.