The revocation of a fraudulent act shall not be deemed contradictory to the contrary.

Since it cannot be deemed contradictory to the purpose and legal effect of the disposition imposing gift tax and the revocation of fraudulent act, there is a difficulty in deeming that the revocation of fraudulent act cannot be claimed on the sole basis of imposing gift tax.

2012 Gohap10342 Revocation of fraudulent act

Korea

ThisAAA

July 9, 2013

July 23, 2013

1. (a) The revocation of each gift agreement set out in Annex 1. List between the Defendant and the competentB.

B. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day following the conclusion of this judgment to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. From around 2005, the rightB had engaged in the clothing source processing and export business, and had under-reported the value-added tax and general income tax from 2007 to 2008. As a result of conducting a tax investigation with respect to the rightB, the director of the mid-term Tax Office and the Gangwon-dong Tax Office under the Plaintiff discovered it as a result of the tax investigation with respect to the rightB, and on May 1, 2012, notified the rightB as of May 31, 2012 each time limit for payment of under-reported value-added tax and global income tax (hereinafter “each national tax of this case”). However, the right BB did not pay the notified amount by the time limit for payment, and the sum of the amount in arrears by the rightBB as of the date of the instant lawsuit is KRW 000 (hereinafter “the tax claim of this case”).

B. On June 28, 2013, in the case of violation of the Punishment of Tax Evaders Act, the rightB was sentenced to a fine of KRW 000,000,000,000,000 from 207 to 2010, and was not issued or received a tax invoice for the purchase and sale from 2007 to 2010, and was sentenced to a fine of KRW 00,000.

C. Meanwhile, on February 6, 2009, the Defendant, the wife of the rightB, purchased each of the real estate listed in Schedule 1 paragraph (1) in Annex 3 from the KimD on February 6, 2009, and acquired ownership from E on May 11, 2009 from E; and the rightB donated each of the real estate listed in Schedule 2 paragraph (2) from E on December 22, 2008 to May 12, 2009, as shown in Annex 1, the Defendant donated the Defendant totaling KRW 993,000,000,000 (hereinafter referred to as “each of the instant gift contracts”).

[Reasons for Recognition] The facts without dispute, Gap evidence 1 through 8 (if available, including each number, hereinafter the same shall apply), Eul evidence 1, and the purport of the whole pleadings

2. Determination

(a) Occurrence of the right to revoke the fraudulent act;

(i)the existence of preserved claims;

A) Although it is necessary to say that a claim can be protected by the obligee's right of revocation was, in principle, incurred prior to the commission of an act that can be viewed as a fraudulent act, there is high probability that at the time of the fraudulent act, there is a legal relationship that serves as the basis of the establishment of the claim in the near future, and that the claim should be established in the near future, and where a claim has been established in the near future because its probability is realized, the claim may also become a preserved claim in the obligee's right of revocation. This legal principle applies to a tax claim (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 200; 2006Da66753, Jun. 29, 2007). According to Article 21(1)1 and 7 of the Framework Act on National Taxes, income tax, and liability for payment of value-added tax are established under the law without any separate act of the taxpayer or taxpayer, and the tax authority naturally determines and notifies the tax amount from 13th to 1.

B) The facts that each of the national taxes in this case was notified on May 1, 2012, which was 200 after each of the instant donations, were as seen earlier, and the following circumstances are considered comprehensively taking into account the evidence and overall purport of pleadings, and ① on December 22, 2008 and December 30, 2008, each of the instant tax claims was established on December 31, 2007 and each of the instant tax claims was confirmed on June 30, 2008, and each of the instant tax claims was established on June 20, 2008, and on June 30, 2009, each of the instant tax claims was established on June 20, 200, and it was highly probable that each of the instant tax claims was established on June 20, 2008, and on June 30, 2009, each of the instant tax claims was established on each of the instant tax claims that was established on December 31, 2008.

C) Meanwhile, the amount of the obligee’s right of revocation includes the interest or delay damages incurred until the date of closing argument in the court of fact-finding, and the additional dues prescribed in Article 21 of the National Tax Number Act are the kind of incidental tax imposed in the meaning of interest on the unpaid portion in the event national tax has not been paid by the due date, and the tax claim is recognized as the preserved claim of the obligee’s right of revocation, the amount of the tax claim includes the additional dues incurred after the fraudulent act until the closing of argument (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007). As such, the additional dues for the preserved claim in the instant tax claim can also be the preserved claim of the obligee’s right of revocation. Ultimately, the amount of the Plaintiff’s preserved claim against the obligee’s rightB is the total amount of the amount in arrears under paragraphs (1) through (8) of the attached Table 2.

D) The Defendant asserts that the scope of the Plaintiff’s claims for preservation should be limited to the above amount of global income tax amount of KRW 000 and value-added tax of KRW 000,000, etc. However, as seen earlier, criminal facts acknowledged in the above criminal case constitute “tax evasion by fraud or other unlawful means” pursuant to Article 3(1) of the Punishment of Tax Evaders Act, and the amount of tax evasion by the rightB is KRW 00,00, and as long as the Plaintiff notified the tax amount on the under-reported portion of the rightB, it cannot be said that the Plaintiff’s additional tax claim should be excluded from the secured claim, and that the above claim by the Defendant is without merit, as long as the tax claim is determined additionally by notifying the Plaintiff of the tax amount on the under-reported portion of the rightB.

(ii)the intent to commit fraudulent acts and to commit fraud;

A) In case where a debtor has engaged in several continuous disposal of property, it is necessary to judge whether each act causes insolvency (see, e.g., Supreme Court Decision 2000Da69026, Apr. 27, 2001). However, when there are special circumstances to regard the series of acts as one act, it is necessary to judge whether the other party to the disposition is in a single act as a whole, and when determining whether there are such special circumstances, it should be specific criteria such as the other party to the disposition, whether the other party to the disposition is uniform, and whether there are special relationships between the other party and the debtor, and whether the other party's motive or opportunity for each disposition are identical (see, e.g., Supreme Court Decision 2005Da7795, Jul. 22, 2005).

B) The following circumstances revealed by the evidence framework mentioned above as to the instant case, i.e., (i) the other party to each instant donation contract is the Defendant, and (ii) the Defendant, at the time of purchasing real estate on February 2009 and around May 2009, donated KRW 000 in total to the Defendant for the purchase fund, the motive of the disposition is the same. (iii) In light of the fact that each instant donation contract was made from December 2008 to May 2009, each of the instant donations contract was made on several consecutive occasions, but it appears that there are special circumstances to regard each of the instant donations as a single act, and therefore, it is reasonable to judge whether each of the instant donations contract was made as a whole, and the base date should be May 12, 2009, which is the last date of the donation.

C) Furthermore, in determining whether an obligor’s insolvency, which is the requirement to exercise the obligee’s right of revocation, is the subject of a fraudulent act, in principle, it is required that the act would have occurred prior to the commission of the act, but at the time of the fraudulent act, there is a high probability that the legal relationship, which is the basis of the establishment of the obligation, has already been established at the time of the fraudulent act, and that the obligation is established in the near future, based on its legal relationship, and that is actually realized in the near future, the obligation should also be included in the obligor’s small property (see Supreme Court Decision 2010Da68084, Jan. 13, 201).

D) Considering the overall purport of the arguments in the statement in Gap evidence Nos. 5 and 6 with respect to this case, active property which the rightB had been held at the time of each gift contract of this case can be recognized as being 000 in total, including condominium membership, automobile lease deposit, and deposit, as of May 12, 2009. On the other hand, considering the overall purport of the arguments in the above evidence, it can be recognized that the rightB had established tax liability of KRW 000 as of May 12, 2009 (based on the tax amount notified in paragraphs 1 through 8 of the attached Table No. 2.). According to the above facts, each of the gift contracts of this case was established, and it was highly probable that the above obligation was established in the near future, and that the above obligation was actually established in the near future, and each of the gift contracts of this case was established at the time of each of the above 00B. Thus, it is reasonable to view each of the gift contracts of this case as 00B.

E) Therefore, the rightB should be deemed to have deepened the status of excess by donating a total of KRW 000 to the Defendant in excess of the active property. Therefore, it is reasonable to view that each of the instant gift agreements constitutes fraudulent act in relation to the general creditors including the Plaintiff, and that the rightB, the debtor, was aware that it would thereby prejudice the general creditors, and that the Defendant’s bad faith, the beneficiary, is presumed.

3) Judgment on the defendant's assertion

After donated KRW 000 from the rightBB, the Defendant paid KRW 000 on June 27, 2012 as gift tax according to the Gangnam District Tax Office’s notice of gift tax payment. The Plaintiff asserted that each of the instant gift contracts should be revoked as a fraudulent act without any measure such as revocation of the disposition imposing the gift tax or refund of the tax amount due, is inconsistent with the preceding act, but it is not contradictory to the purpose of the disposition imposing the gift tax and the revocation of the fraudulent act, and the legal basis and effect. Therefore, it is difficult to deem that the Plaintiff’s imposing the gift tax on the Defendant to constitute a contradiction in seeking revocation of the fraudulent act, and there is no other evidence to support the Defendant’s assertion.

(b) Revocation of fraudulent act and reinstatement;

Therefore, each gift contract of this case shall be revoked as a fraudulent act against the plaintiff, and the defendant shall be obligated to pay to the plaintiff 00 won and the damages for delay at the rate of 5% per annum under the Civil Act from the day following the final judgment of this case to the day of full payment.

3. Conclusion

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