Any donation made by the apartment sale price in the name of the spouse shall be subject to revocation of the fraudulent act.

Since the delinquent taxpayer's excess of his/her liability deepens by remitting money to his/her spouse according to the donation contract in excess of his/her liability, it constitutes fraudulent act, the defendant is liable to compensate for the value

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Acts and Restoration to Original State)

2014 Ghana 516877 Revocation of Fraudulent Act

Korea

AA

on October 25, 2015

1. As between the Defendant and Nonparty BB,

(a) for KRW 25,00,000, concluded on February 1, 2011;

(b) for KRW 60,000,000, concluded on March 15, 2011;

(c) 10,000,000 won concluded April 22, 2011

Each gift contract shall be revoked.

2. The defendant shall pay KRW 95,000,000 to the plaintiff and shall be from the day following the day when the judgment of this case became final and conclusive.

The amount shall be paid at the rate of 5% per annum from the date of full payment.

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) Relation to the sale and purchase of apartments and payment thereof;

(1) On January 28, 201, 201, the Defendant’s husband BB sold OO-dong O-dong O3-10 O-dong 101 and 809 (hereinafter “O-dong 1 apartment”) toCC and D for KRW 220 million,000,000,000,000 for contract deposit was paid on the date of the contract from E-E, who is the words of DD, and the intermediate payment of KRW 60,000,000,000,000,000,000,000,000, out of the remainder, was transferred to the Defendant on April 22, 2011, andCC and D had completed the registration of ownership transfer on the above apartment on April 12, 2011.

(2) On February 1, 2011, the Defendant purchased OO-gu O-dong 504-10 O3-10, 812 (hereinafter “O-dong 2 apartment”) KRW 415,000,000,000,000,000 from F on February 1, 2011, and KRW 25,000,000,000 out of the down payment 40,000 on February 1, 2011, and the intermediate payment 60,000,000 won on March 15, 201, and the Defendant completed the registration of ownership on April 12, 201.

B. Formation of a taxation claim

(1) From December 19, 201 to February 16, 2012, BB discovered a temporary park that was appropriated for processing and purchase related to OO energy in the taxable year from 2006 to 2009 through an investigation (the investigation of the recipient of the processed tax invoices) related to the transaction order of value-added tax on GG Co., Ltd. (hereinafter referred to as “Nonindicted Co., Ltd”).

(2) After that, the head of a tax office imposed global income tax on B based on the recognized leisure materials on the non-party company as global income tax of 93,695,342 won, global income tax of 2006, global income tax of 18,791,017 won, global income tax of 2007, global income tax of 93,430,144 won, global income tax of 2008, global income tax of 236,98,419 of 209, global income tax of 236,98, and 419 won, and additionally imposed the additional additional additional tax on negligent tax returns of 8,147,702 won, 206, and 1,276,732 won for the year 207,8,427 won for the year 208, 209, 305, 315, 205.

(3) BB fails to pay the above global income tax and additional tax on negligent tax returns by the filing date of the instant lawsuit, and thus fails to pay additional tax amounting to KRW 596,613,400, including additional tax.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 14 (including additional number), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

The Plaintiff: BB out of the purchase price of the 2 apartment purchased by the Defendant, sold the said apartment to the seller of the said apartment (hereinafter “first remittance”); and KRW 60 million on March 15, 201 (hereinafter “the Plaintiff”) and KRW 60 million on March 15, 201.

The term "the second remittance" was remitted to each other and the purchase price of the first apartment sold by BB.

The Defendant’s receipt of the transfer of KRW 10 million from the purchaser of the above apartment (hereinafter “third remittance”) on April 22, 2011 (hereinafter “the third remittance”) constitutes a fraudulent act under the contract of donation and sought compensation for the equivalent value as restitution, by asserting that it constitutes a fraudulent act under the contract of donation.

As to this, the defendant is already aware of the current status of the taxpayer's property possession as a country that is not a party to the general equal status and can enforce compulsory execution against the taxpayer's property through the property data held at the lapse of 30 days from the due date for payment. As such, the defendant's head of a tax office *B imposed comprehensive income tax on BB on September 30, 2012 and March 31, 2013. The plaintiff becomes aware of the sale of the apartment house 1 on October 30, 2012 and April 30, 2013.

As such, the instant lawsuit brought on June 23, 2014, which had been one year elapsed from that date, is deemed unlawful as the limitation period expired.

B. Determination

"The date when the obligee becomes aware of the ground for revocation in the exercise of the obligee's right of revocation" means the date when the obligee becomes aware of the requirements for the obligee's right of revocation, that is, the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act with the knowledge that it would prejudice the obligee. Thus, it is not sufficient that the obligor merely aware of the fact that the obligor conducted a disposal act of the property, that is, the juristic act is an act detrimental to the obligee. In other words, it is necessary to know the fact that the legal act was not sufficient to secure the joint security of the claim, or that the joint security already in the short condition was insufficient, making it impossible to fully satisfy the claim, and further, that the obligor had an intent to harm the obligee (see Supreme Court Decision 2001Da11239, Nov. 26,

As alleged by the Defendant, even if the Plaintiff imposed the global income tax on BB as claimed by the Defendant, and around October 30, 2012 and April 30, 2013, it is insufficient to recognize that the Plaintiff knew of the fact of selling the first apartment house, even if it became aware of the fact of selling the first apartment house after 30 days from the payment deadline, it is insufficient to recognize that BB was aware of the fact that each transfer of the instant apartment, and its excess of the debt, or that the excess of the debt was deepened, and

3. Judgment on the merits

(a)the existence of preserved claims;

(1) In principle, a claim protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, there is a high probability that at the time of the juristic act, there has already been a legal relationship which serves as the basis for the establishment of the claim, and that the claim would have been created

In fact, where a claim has arisen due to the realization in the near future, such claim may also become a preserved claim against the obligee’s right of revocation (see, e.g., Supreme Court Decisions 2000Da37821, Mar. 23, 2001; 2006Da66753, Jun. 29, 2007).

(2) According to the above facts, the time when each transfer of this case occurred, and the time prior to the time when the plaintiff notified the tax claim of this case to BB. However, from 2006 to 2009, BB used a park as the representative of the non-party company as the representative of the non-party company, which was appropriated as a processing purchase related to OO Energy, and there was a high probability of the occurrence of global income tax claims due to the recognition by reporting the value-added tax to the tax authority on the basis of the virtual park calculated by the processing purchase, and in fact, the possibility of the occurrence of global income tax claims due to the recognition was actually realized after being notified of the global income tax as of September 4, 2012. As such, the tax claim of the plaintiff B becomes the preserved right of revocation (the defendant asserts that the defect of the above taxation disposition is significant and apparent, but it cannot be accepted that the above taxation disposition is null and void merely because it repeats the tax investigation on the same tax item and the same taxable period.)

(b) insolvent of BB;

이 사건 각 송금 당시 BB의 적극재산으로는 2억 2,000만 원 상당의 제1 아파트(제3 송금 당시에는 이미 CC, DD에게 소유권이전등기가 경료되어 적극재산에도 포함할 수 없다)와 6,000만 원 상당의 QQ 주식회사 주식이 전부인 사실은 당사자 사이에 다툼이 없고, 소극재산으로는 앞서 본 596,613,400원의 체납세금 채무(이 사건 각 송금 당시 이 사건 조세채무가 구체적으로 성립되지는 않았지만 위에서 본 바와 같이 이미 그 기초적 법률관계가 발생하고 채권이 성립할 고도의 개연성이 있어 채권자취소권의 피보전권리가 되므로, 소극재산에도 포함하는 것이 상당하다), 제1아파트에 대한 하나은행에 대한 8,500만 원의 피담보채무를 부담하고 있어 이 사건 각 송금 당시 BB은 이미 채무초과상태에서 피고에게 증여계약에 따라 이 사건 각 송금을 함으로써 채무초과상태가 심화되었다.

(c) Details of the fraudulent act;

(1) As to the Plaintiff’s assertion that each of the instant transfers was governed by each gift contract, the Defendant, while working in the Company from November 2009, had earned income of 5 million won per month, and BB had no income since 2009. The Defendant paid the BB’s fine on August 27, 2010 and paid the same KRW 12,720,080 on September 2, 2010, respectively. Each of the instant transfers asserted that the Defendant received repayment of the said substitute fine.

(2) If a debtor donates his/her own property to another person and causes a situation of exceeding his/her obligation, such act constitutes a fraudulent act, barring special circumstances (see, e.g., Supreme Court Decisions 97Da57320, May 12, 1998; 2005Da28686, May 21, 2007). However, in cases where the debtor’s joint security of other creditors is reduced by paying his/her debt to a certain creditor according to the principal place of obligation, in particular, it does not constitute a fraudulent act in collusion with some creditors, unless he/she performs performance with the intent of undermining other creditors (see, e.g., Supreme Court Decision 2005Da62167, Jun. 15, 2006).

In light of the following circumstances, i.e., the defendant alleged that he paid KRW 137,731,30 in aggregate to BB, and the defendant is unable to submit financial data on withdrawal of money exceeding KRW 100 million or payment thereof. ② At the time of the sales contract for apartments 1 and 2, there is no special circumstance that the defendant and BB own their own financial account and are to receive the purchase price of the apartment owned BB as the defendant’s account. ③ The director of the OO had already conducted an investigation into corporate tax on the non-party corporation from February 17, 2009 to April 13, 2009, the non-party corporation acquired the transfer of ownership from the non-party corporation 206 to the non-party corporation as its representative. The non-party corporation acquired the ownership transfer of the apartment house under the non-party 1’s name and the non-party 2 acquired the ownership transfer of the apartment house under the non-party 1’s own name. The non-party 2 acquired the ownership transfer of the apartment house under its own name.

D. Whether the defendant acted in good faith

(1) In a lawsuit seeking revocation of a fraudulent act, a beneficiary or subsequent purchaser is not obligated to prove that the beneficiary or subsequent purchaser is maliciously, but is liable to prove that the beneficiary or subsequent purchaser is bona fide (see, e.g., Supreme Court Decision 2009Da81920, Sept. 29, 201).

(2) The Defendant alleged that the fine imposed on BB was paid on behalf of the Defendant before each of the instant transfers, and that it was bona fide since the payment of corporate tax and value-added tax after the instant transfers. However, there is no evidence to acknowledge that the Defendant paid the fine on behalf of BB as seen earlier, and it is difficult to acknowledge the Defendant’s assertion solely on the ground that some corporate tax or value-added tax was paid on behalf of the non-party corporations, not the global income tax on BB.

(e) Revocation of fraudulent act and reinstatement;

Each of the instant transfers constitutes a fraudulent act under the gift contract, and thus, each of the instant donations contract shall be revoked. Since each of the instant donations contract was fully performed by each of the instant transfers, the Defendant is obligated to pay to the Plaintiff the amount equivalent to KRW 95 million (10 million + KRW 25 million + KRW 60 million) as compensation for damages, and to pay damages for delay at the rate of 5% per annum from the day following the day when this judgment becomes final and conclusive until the day when the full payment is made.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.