Whether the non-party delinquent taxpayer is merely a representative of the legal entity;

Even if community credit cooperatives acquired the right to collateral security on the instant real estate after the formation of the instant donation contract, the Plaintiff may seek against the Defendant, the beneficiary, instead of returning the value by means of restitution, the procedure for the registration of transfer of ownership on the instant real estate directly to the debtor.

Article 38 of the National Tax Collection Act

2015Na2292 Revocation of Fraudulent Act

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Case Number immediately preceding

Ulsan District Court 2014Kadan63604 (No. 23, 2015)

May 25, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On June 24, 2014, the agreement of donation concluded on June 24, 2014 with respect to the real estate listed in the separate sheet (hereinafter referred to as "real estate of this case") between the defendant and high ○○○ shall be revoked. The defendant will implement the procedure for the registration of transfer of ownership based on the restoration of real name with respect to the real estate

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

A. The process leading up to the establishment of the Plaintiff’s global income tax claim against high ○○

산하 울산세무서장은 2013. 3. 2.경 주식회사 ▢▢이아이(이하 '▢▢이아이'라

In determining the corporate tax base for the business year 201 (from January 1, 2011 to December 31, 2011), the amount of KRW 198,039,031, which was omitted in sales, was included in the gross income, and the above amount included in the gross income, which was leaked to the company other than the company, was deemed to have been reverted to the representative director of the above corporation at that time pursuant to Article 106(1) of the Enforcement Decree of the Corporate Tax Act, and was disposed of as bonus (hereinafter referred to as “instant recognized bonus disposition”), and notified the high ○○○ of the change in the amount of income related to the instant recognized bonus disposition to additionally report and pay the relevant comprehensive income tax.

As ○○○ did not additionally file and voluntarily pay the global income tax for the taxable year 2011 due to the instant recognition contribution disposition, the head of the Dongsan District Tax Office having jurisdiction over the Plaintiff’s domicile of ○○○○, imposed global income tax for the taxable year 2011 (hereinafter “instant tax claim”) on ○○○ in June 2014 (the due date of June 30, 2014) of KRW 59,374,040 (the tax claim of this case).

(b) Donation of the instant real estate to ○○○;

On June 24, 2014, ○○ entered into a gift agreement with the Defendant, the wife, on the instant real estate (hereinafter referred to as “instant gift agreement”), and on the same day, the registration of ownership transfer was completed with the Busan District Court No. 51567.

(c) The asset status of ○○○;

○○ was in an excess of the obligation at the time of entering into the instant gift contract, and there was no particular property other than the instant real estate.

D. On June 24, 2014, the Defendant entered into a mortgage agreement with the mortgagee ○○ Saemaul Depository, the debtor, the maximum debt amount of KRW 7,200,000 on the instant real estate, and completed the registration of establishment of a neighboring mortgage by the Ulsan District Court No. 51568 on the same day.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings

2. The occurrence of the claim for revocation of fraudulent act;

A. Determination on the cause of the claim

(1) Occurrence of preserved claims

Although it is required that a claim that can be protected by the creditor's right of revocation has arisen prior to the act that can be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where a claim has been created as a result of the realization of the possibility, the claim may also be the preserved claim of the creditor's right of revocation in the near future. In a tax claim for which the tax authority imposed global income tax on the original taxpayer after the disposition of global income tax was made by the tax authority, and becomes final and conclusive, the basic legal relationship arises at the time when the outflow of the income amount that caused the disposition of income occurred (see, e.g., Supreme Court Decision 200Da37821, Mar

However, as seen earlier, the outflow from the income amount which was the cause of the recognition and contribution disposition of this case was omitted in sales instead of the 2011, so the taxation claim of this case has already occurred in the year 2011, and in light of the fact that the taxation claim of this case was established and confirmed through a series of procedures such as the disposition of income and the notice of change in the income amount due to the omission in sales, it was highly probable that the taxation claim of this case was established and confirmed in the near future based on the above legal relationship in the near future, and its probability was actually realized in the near future, and the taxation claim of this case was established and confirmed. Accordingly, the taxation claim of this case can become the preserved claim of the obligee's right of revocation.

(2) The establishment of fraudulent 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 (see, e.g., Supreme Court Decision 97Da57320, May 12, 1998). According to the above findings of recognition, the instant donation contract was concluded with the defendant while high ○○ had exceeded his/her obligation, and thus, constitutes a fraudulent act.

(3) A private will;

It is presumed that ○○○ concluded the instant donation contract with the Defendant, thereby recognizing that there was a lack of common security of the Plaintiff and other general creditors.

B. Judgment on the defendant's assertion

(1) As to the existence of the preserved claim

The Defendant asserted whether the obligee’s right of revocation exists, on the ground that the Defendant’s disposition of recognition in this case or the disposition of global income tax in this case, premised on the fact that ○○ is the actual representative of the company, is unlawful, since ○○○ is merely the representative of ○○○○○ in the form of the Plaintiff’s objection and is separate from the actual representative.

As long as a taxation disposition cannot be deemed null and void as a matter of course, even if there are illegal grounds for revocation of the taxation disposition, such taxation disposition is valid until it is lawfully revoked in the process of administrative litigation, etc. by the fairness of administrative act. Therefore, the validity of the taxation disposition cannot be denied in the civil procedure (see Supreme Court Decision 99Da20179, Aug. 20, 199). There is no evidence to acknowledge that the disposition of global income tax in this case is null and void as a matter of course. Even if the above disposition is illegal, it is valid until the revocation is lawfully. Thus, this part of the Defendant’s assertion is without merit.

(2) As to the defendant's good faith

The defendant asserts that ○○○ and the defendant did not know the existence of the pertinent taxation claim in the form of ○○○○ and the defendant, the representative director of ○○○, a corporation, and further did not know that the instant donation contract did not prejudice the creditor.

On the other hand, there is no evidence to acknowledge that the defendant was bona fide, and there is no evidence to acknowledge that the defendant was bona fide. Rather, considering the above recognized facts and the overall purport of pleadings, the defendant merely asserted that ○○○ is merely a representative director of son, instead of a corporation, and did not submit any evidence. ② The head of Ulsan District Tax Office served a notice on ○○○ on March 2, 2013 on the change in the amount of income as to the disposal of the recognition and contribution in the instant case, and ○○ was aware that the tax claim in the instant case could have been established and confirmed, ③ the defendant was aware that ○○○○ was the wife of ○○○ and his address was the same, and therefore, this part of the defendant's assertion is without merit.

3. Methods of reinstatement;

If a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary is obligated to return the object of the fraudulent act to the debtor as restitution, and if it is impossible or considerably difficult to return originals, the beneficiary is obligated to compensate for the value equivalent to the value of the object of the fraudulent act as performance of duty to restore. Here, where the originals are impossible or considerably difficult to return means cases where the return of originals is not simply absolute or physically impossible, but cannot expect the realization of the performance in light of social experience rules or the concept of transaction. Thus, in cases where a third party acquires the right of mortgage, superficies, etc. after the fraudulent act, the creditor may seek compensation against the beneficiary in lieu of the originals return, unless there are special circumstances such as that the beneficiary may transfer the originals to the originals without any limitation such as mortgage. However, in such cases, the creditor may seek compensation for the transfer registration of the ownership of the former beneficiary by way of the method of restitution to the originals return to the originals, and even if the creditor directly seeks the ownership transfer registration of the above real properties against the beneficiary (see Supreme Court Decision 2009Da719.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance with the same conclusion is just and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.