Criteria for determining whether a real estate sales contract had an intention to injure at the time of the real estate sales contract

Inasmuch as a notice of payment has not been served lawfully, it is difficult to view that a sales contract was concluded with the knowledge of the existence of the secondary liability for tax payment, and considering the fact that the taxpayer disposes of real estate and paid the national tax imposed on the principal, it is deemed that there is no intention to

The contents of the decision shall be the same as attached.

Article 30 (Cancellation of Fraudulent Act)

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

A sales contract concluded on June 8, 2007 with respect to the real estate listed in the attached list between the defendant and the non-party Kim ○, shall be revoked within the limit of KRW 241,878,90,00, and the defendant shall pay to the plaintiff a sum of KRW 241,878,90 and 20% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the pleadings in the descriptions of Gap evidence 1-1 through 5, Gap evidence 2-1 through 11, Gap evidence 3, 19-24, Gap evidence 4-1, 2, Gap evidence 1-1 through 4, Gap evidence 17-1 through 3, Gap evidence 18-1, 25-2, Gap evidence 26-1 through 3, Gap evidence 27-1, 27-2, and Eul evidence 1.

(a) Relationship between the Parties

1) The Kim○○○○○○○○○○○ (hereinafter below, Nonparty Company’s representative director) held 51.18% of the shares of Nonparty Company in 2003, and 76.18% in total, 25.00% of the shares of Nonparty Company and 46.06% of the shares of Nonparty Company and 22.51% of the shares of Nonparty Company in 2004. The Kim○○’s order owned 46.06% of the shares of Nonparty Company and 22.57% of the shares of Nonparty Company.

2. (The defendant is the defendant in Kim Il-soo's fraud).

B. Establishment of tax liability of the non-party company

1) On October 1, 2006, the head of ○○ Tax Office under the Plaintiff’s control issued a notice of correction and notification of the value-added tax for the first half year of 2006 with respect to the construction profit omitted as shown in No. 6 of the attached Table of Tax. ② As described in the attached Table No. 1, October 10, 2006, the head of ○○ Tax Office issued a notice of correction and notification of the corporate tax for the interim prepayment period of 2006, and ③ on November 6, 2006, re-revision and notification of the value-added tax for the first half year of 2006, as described in the attached Table No. 7 of Tax List No. 7 (the foregoing value-added tax and corporate tax

2) The head of ○○○ Tax Office under the Plaintiff’s control notified Nonparty Company of the payment of the value-added tax for the first term portion of 2007 (the tax amount for year 2007) as shown in No. 8 of the [Attachment 4, 2007], and found that the sales were omitted in the report of corporate tax and value-added tax from 2002 to 2006, and notified Nonparty Company of the rectification of corporate tax and value-added tax (the tax amount for correction before 2005) from 202 to 2005 with respect to the sales omitted as described in the [Attachment 2 to 5, 9, and 16] of the attached Table 107.

C. Establishment of secondary tax liability in Kim Il-soo

1) On February 28, 2007, the non-party company was unable to pay the corrected tax by the due date, and closed its business on February 28, 2007. Accordingly, pursuant to Article 39(1)2(a) of the Framework Act on National Taxes, the head of the ○○○ Tax Office designated the order of oligopolistic shareholder Kim○ as the secondary taxpayer pursuant to Article 39(1)2(a) of the Framework Act on National Taxes, and sent the secondary taxpayer’s notice of tax payment for 2006 correction as shown in attached Table 1, 6, 7, and 207 (it was not submitted as evidence, but it can be recognized that the Plaintiff’s notice of tax payment was sent by the time of the above date according to each of subparagraph 6-1, 6, and 7, and therefore, the documents sent by the Plaintiff are recognized as the notice of tax payment. However, the service of the above documents is

2) On June 5, 2007 and the 8th day of the same month, Kim ○○ disposed of the real estate owned by it, including the real estate listed in the [Attachment List]. The head of ○○○ Tax Office treats it as an act to evade national taxes under Article 14(1)7 of the National Tax Collection Act, which constitutes a case where taxes can be collected prior to the payment period. On July 10, 2007, the non-party company notified the non-party company of the tax amount in 2007 and the revised tax amount in 2005, and at the same time, he designated Kim ○ order as the second taxpayer and sent the second taxpayer notification on the tax amount in 205 and the tax amount in 207 (the service of the documents is considered to be below).

3) The Kim Il-young did not perform all the above secondary tax liability. As of January 28, 2008, the date of the filing of the instant lawsuit, the arrears amounting to KRW 241,878,900 in total, as shown in the column of delinquent taxes as of the Kim Jong-○’s current tax list.

(d) Sale of real estate in Kim○-ran;

On June 8, 2007, when selling the instant real estate to the Defendant at KRW 500,000,000 (hereinafter below), the amount of KRW 260,000,000 among them was agreed to set off against the Defendant’s claim for return of KRW 100,000,000 for the instant real estate deposit and the Defendant’s claim for return of KRW 140,000 for the amount of KRW 140,000 for the instant real estate deposit and the amount of KRW 140,000 for the amount of KRW 140,000 for the instant real estate deposit.

2. The assertion;

At the time of the instant sales contract, the Plaintiff had already established a tax claim under the secondary tax liability for 2006 pertaining to the corrected tax amount. Although the tax claim under the secondary tax liability for 2005 and 2007 pertaining to the corrected tax amount was not yet established, there was a legal relationship that forms the basis of its establishment, and there was an intention to establish a claim accordingly, and there was a tax claim. In fact, the instant sales contract claims that the instant real estate sold the instant real estate to the Defendant with the intent to harm the Plaintiff, who is a general creditor, and deepens the state of the insolvency, and thus, the instant sales contract constitutes a fraudulent act, and seek compensation for value as the cancellation and restitution within the scope of the amount of the claim.

3. Determination

A. Whether there is a preserved claim

[1] A tax claim based on the secondary tax liability on the amount of tax payable in 2006

In order to establish the secondary tax liability, a fact that meets the requirements for the primary taxpayer’s default, etc. As such, the period of establishment is at least after the payment deadline for the primary tax liability expires (see, e.g., Supreme Court Decisions 81Nu89, Aug. 24, 1982; 2005Du8498, Dec. 22, 2006).

The deadline for payment of the tax amount paid by the non-party company in 2006 is October 31, 2006 and December 1, 2006. Thus, at the time of the instant sales contract, the secondary tax liability for the tax amount paid in 2006 was already established.

2) Tax claims pursuant to the secondary taxpayer on the amount of tax to be corrected before 2005 and the amount of tax to be paid in 2007

A) The deadline for the payment of the tax amount paid before July 31, 2007 and June 30, 2007 on the tax amount paid before the 2005 of the non-party company was on June 30, 2007. At the time of the instant sales contract, the secondary tax liability on the tax amount paid before 2005, and the tax amount paid in 2007 on the 2007, did not have yet been established since the deadline for the payment of the principal tax liability had not expired ( there is no evidence to prove that the e-mail had committed tax evasion under Article 14(1)7 of the National Tax Collection Act).

B) In principle, a claim that can be 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 of the establishment of the claim, and that the claim would have been created in the near future, and in the near future, there is a high probability that the claim would have been created based on such legal relationship, and in case where a claim is actually created in the near future, it should have occurred before doing a juristic act for the purpose of property right with the knowledge that it would damage the claim. However, if there is a high probability that the legal relationship which is the basis of the establishment of the claim has already been established at the time of the juristic act, and that the claim would have been created based on such legal relationship in the near future, it may be the obligee’s right of revocation (see, e.g., Supreme Court Decisions 2004Da3546

(1) According to the above facts, the taxable period of the Non-Party Company’s revised tax amount before 2005 and the tax amount in 2007 was already commenced, and the Non-Party Company was delinquent, and Kim ○ was an oligopolistic shareholder of the Non-Party Company, and the legal relationship that forms the basis of the establishment of the claim was generated at the time of the instant sales contract.

(2) However, in full view of the facts and evidence as seen earlier, the non-party company’s corporate tax and value-added tax imposed on a regular basis from 2002 to 2006 is found to have been paid normally. Around the end of 2005, the non-party company’s employees left the company due to a dispute with the company and conducted a tax investigation at the competent tax office after leaving the company, thereby omitting sales, and the non-party company was found to have been additionally imposed a large amount of tax revised in 2006 and the amount of tax revised before 2005 as indicated in the attached Form. In particular, the non-party company’s corporate tax revised before 2005 and the amount of tax collected in 2007 are imposed and notified to the non-party company, which is the main taxpayer, and at the same time,

As such, it is generally difficult to expect that corporate tax and value-added tax should be imposed on a corporation that has paid taxes normally for the past five years due to the tax investigation conducted. Furthermore, the circumstance that the secondary tax liability should accrue at the time of the failure to impose and notify such principal taxpayers of the imposition of taxes for the past five years is difficult. Therefore, there is no high probability that the tax claim under the revised tax prior to 2005 and the secondary tax liability pursuant to the secondary tax liability prior to 2007 should be established.

3) Ultimately, the amount of tax that was corrected before 2005 and the amount of tax that was paid in 2007 cannot be the preserved claim against the instant claim for the revocation of the fraudulent act, and only the amount of tax that was corrected in 2006 becomes the preserved claim of the instant claim.

B. Whether a fraudulent act was committed

In order to preserve the corrected tax amount in 2006, the obligee's right of revocation is required to establish the obligor's right of revocation. It is examined as to whether the obligor's intent was expressed to the Kim ○, at the time of the instant sales contract.

1) Facts of recognition

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in the descriptions of Gap evidence 7, Gap evidence 8-1 through 15, Eul evidence 9-1, 2, Eul evidence 1, 2, 4, Eul evidence 3-1 through 15, Eul evidence 5-1 through 6, Eul evidence 6-1, and Eul evidence 6-2:

A) On May 11, 2007, the head of the ○○ Tax Office issued a secondary tax payment notice with respect to the amount of tax paid in 2006 to Kim ○○○, Kim Jong-dong, Seoul, the domicile of Kim ○○○, and the written notice was issued by the ○○○○○, which was the domicile of Kim ○○, (The written evidence No. 17-1 and No. 2, the details of the post office registration mail). According to each of the above written evidence No. 17-1 and No. 2, it can be recognized that the written notice was delivered to the post office on May 11, 2007. In full view of the Plaintiff’s electronic data No. 6-1,6,7, and No. 17-1, the specifications of the post office registration, the Plaintiff’s electronic data, and if the written notice was received from the above post office on the same date as the registered mail office’s receipt of the written notice, it can be seen that the above written notice was delivered to the above ○○.

B) The Kim Jong-soo operated the farming industry, separate from the non-party company, the company was also subject to a tax investigation, and accordingly, the company was subject to the comprehensive income tax from 2001 to 2005. To pay this, the Kim Jong-tae sold the real estate, including the instant real estate, and paid the comprehensive income tax at its sales price.

2) Determination

그러나 서○심이 이○순을 대신하여 납부통지서를 송달받을 권한이 있는 자라고 인정할 증거가 없는바, 납부통지서가 김○순에게 적법하게 송달되었다고 보기는 어렵고, 그렇다면, 김○순이 제2차 납세의무의 존재를 알면서 이 ㅏ건 매매계약을 체결하였다고 단정할 수는 없다. 거기에다 이 사건 부동산을 포함한 김○순 소유 부동산의 위와 같은 처분 경위를 더하여 보면 김○순이 원고를 해할 의사로 이 사건 매매계약을 체결하였다고 볼 수는 없다.

Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.