Whether it constitutes revocation of fraudulent act

a debtor's sale of real estate, resulting in insolvency, constitutes a fraudulent act

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

1. The purchase and sale contract between the defendant and the non-partyOO on May 23, 2006 is revoked.

2. The defendant will implement the procedure for registration of cancellation of ownership transfer registration completed under No. 3119 on May 23, 2006 by the OO branch of the O branch of the O branch of the O branch of the O branch of the O branch of the O branch of the O branch of the O branch of the non-party

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. As to the cause of claim

(a) Facts of recognition;

(1) On September 20, 1993, Nonparty OO acquired OO-dong 99-3 large scale 224 square meters and constructed a new building in this place (hereinafter the above site and buildings were sold on September 3, 1994). OOO did not separately file a tax return, etc. under the Value-Added Tax Act or the Income Tax Act regarding the above sale and purchase.

However, on January 10, 200, the head of the OO tax office issued a notice to OO to pay KRW 28,627,89, including value-added tax (the total amount of KRW 23,856,583 and KRW 4,771,316) by January 15, 200, including global income tax, and KRW 9,422,493 (the total amount of KRW 7,852,079 and KRW 1,570,414) including global income tax, until January 15, 200 (the total amount of KRW 7,852,079 and KRW 1,570,414). The above tax disposition was notified to OO by March 21, 200 (hereinafter “instant taxation”).

The OO did not pay the national tax imposed by the above taxation until the due date of payment under the instant taxation. On May 23, 2006, the OO did not pay the above global income tax, etc. (hereinafter “the national tax of this case”) as shown below.

Sub-Items :

Year

Principal tax and others

Additional Tax (10 won)

(hereinafter referred to as "Trlime")

Additional dues, etc.

Consolidateds

Liability for Tax Payment

Date of establishment

Deadline for payment

Value-added Tax

on February 1994

28,627,890 won

2,043,190 won

50,671,080 won

December 31, 1994

January 15, 2000

Global Income Tax

4, 199

9,422,490 won

7,254,720 won

16,677,210 won

December 31, 1994

March 21, 2000

Consolidateds

38,050,380 won

29,297,910 won

67,348,290 won

(2) On January 6, 2006, the OO acquired real estate listed in the separate sheet (hereinafter “the instant building”). However, on May 23, 2006, the OO sold the instant building to the Defendant at a lower price than 73 million won (hereinafter “the instant purchase”) and the OOO branch office of the OO branch office of the OO branch office of the District Court completed the registration of transfer of ownership (hereinafter “the instant ownership transfer registration”) in the Defendant’s future on the ground of the instant trade under the Act No. 31119, May 23, 2006, as the OO branch office of the O branch office of the District Court No. 3119.

(3) However, at the same time as the sale and purchase of this case, OO prepared a lease contract to the effect that "OO shall rent the building of this case from the defendant to the 40 million won deposit for the lease of the building of this case," which is residing in the building of this case. On July 13, 2006, OO had completed the registration of creation of a collateral for the building of this case to the 70 million won maximum amount of the claim, the OOOOO, and the defendant. The defendant has not yet paid OO a KRW 40 million out of the purchase price of this case.

(4) Meanwhile, the Defendant is the pro rata’s relative, and the OO came to be insolvent due to the instant sales.

(In fact that there is no dispute, Gap evidence 1, 2, Gap evidence 5, Gap evidence 6-3, Gap evidence 7, Gap evidence 8-1, 2, Gap evidence 9, Gap evidence 10-1, 2, witness 10-2, witness O's testimony, and the purport before oral argument.

B. Determination

In the event that a debtor sells real estate at a low price and causes insolvency, such sales will be a fraudulent act against a creditor, barring special circumstances, and in this case, the debtor's intent of deception is presumed to exist. According to the above facts, the sales in this case constitutes a fraudulent act and the intention of OO's death is presumed to be presumed. Accordingly, the sales in this case should be revoked, and the defendant is obligated to implement the registration procedure for cancellation of ownership transfer registration in this case as restitution to the original state.

2. As to the defendant's assertion and defense

A. As to the assertion that the instant taxation disposition is unreasonable

(1) The Defendant did not sell OO real estate as part of the real estate sales business. Nevertheless, the director of the tax office determined that OOO sold OO real estate as part of the real estate sales business, and issued the instant taxation. Therefore, the instant taxation disposition, which is a premise for the confirmation of national tax claim, is unreasonable or non-existent or which is a premise for the confirmation of national tax claim, so the Plaintiff cannot seek cancellation of the instant transaction and cancellation of the ownership transfer registration in order to preserve the instant national tax claim.

(2) As long as a taxation disposition cannot be deemed as null and void as a matter of course, even if there are illegal grounds for revocation of the taxation disposition, such taxation disposition shall be valid until it is lawfully revoked by the fairness of the administrative act or by the executory power. Therefore, the validity of the said taxation disposition in the civil procedure cannot be denied (see, e.g., Supreme Court Decision 9Da20179, Aug. 20, 199).

In the instant case, even though the head of the OO did not sell O-dong real estate as a real estate sales business, the above reasons are not the grounds for revoking the instant tax disposition, and there is no other data to deem the instant tax disposition as null and void as void as a matter of course. Therefore, even if the Defendant’s assertion is true, the validity of the instant tax disposition cannot be denied in the instant civil procedure, and the instant national tax claim cannot be treated as nonexistent. The Defendant’s argument is without merit.

B. As to the exclusion period and argument of the imposition right

(1) The Defendant asserts to the effect that “OO already sold OO’s real estate at the time of selling it, five years, which is the exclusion period of the right to impose national taxes, and that the instant taxation disposition was made at the time when five years elapsed from that time. Therefore, the Plaintiff cannot impose value-added taxes and general income taxes on OO’s sale of OO’s real estate, and thus, the Plaintiff cannot seek cancellation of the instant sales contract or seek cancellation of the ownership transfer registration in order to preserve these national tax claims.”

(2) The exclusion period of the right to impose national taxes shall normally be five years from the date on which the national tax is assessable (Article 26-2(1)3 of the Framework Act on National Taxes): Provided, That if a taxpayer fails to file a written tax base return within the statutory due date of return, it shall be seven years from the date on which the national tax is assessable (Article 70 through 72, and Article 110 of the Income Tax Act). Meanwhile, “the date on which the national tax may be imposed” means the due date or deadline for submission of the tax base and tax amount of the national tax in filing the tax base and tax amount (Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes in filing the tax base and tax amount (Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes in case of a value-added tax, within twenty five days from the due date of filing the final tax return (Article 19 of the Value-Added Tax Act in case of a value-added tax);

In this case, return to the case, OO was sold on September 3, 1994 by OOOO, and the fact that OO did not report the tax base under the Value-Added Tax Act and the Income Tax Act in relation to the above sale was recognized as above. Thus, the exclusion period of the right to impose the value-added tax is up to January 25, 2002, which is seven years from the day following the day when the value-added tax can be imposed, and the exclusion period of the right to impose the global income tax is seven years from the day following May 31, 1995, which is the termination period of the right to impose the global income tax, and the exclusion period of the right to impose the global income tax is seven years from May 31, 202, which is the day when the general income tax can be imposed. However, the defendant's assertion that the OO and the right to impose the value-added tax were not subject to the exclusion period or after January 10, 2000.

C. As to the claim on the expiration of the statute of limitations

(1) The Defendant asserts to the effect that “the right to collect national tax claim of this case has expired by the expiration of the extinctive prescription.” Therefore, the Plaintiff cannot seek cancellation of the sale of this case or seek cancellation of the ownership transfer registration of this case in order to preserve national tax claim of this case.”

(2) If a person liable for payment fails to report the tax base and amount of national tax, and the tax authority notifies the person liable for payment of the tax base and amount of tax, the relevant collection right terminates by prescription, unless it is exercised for five years from the day following the due date for payment by the notice of tax payment (Article 27(1) of the Framework Act on National Taxes and Article 12-4(1)1 of the Enforcement Decree of the Framework Act on National Taxes). The fact that the period of five years from January 21, 2000, which is the due date for payment under the instant tax disposition, exceeds the calendar.

However, according to the fact that there is no dispute, Gap evidence 11-1-4, and the fact-finding on the O life insurance company of this court, according to the whole purport of the pleading, the plaintiff's claim against OO Nos. 130252189566, Oct. 5, 2004 for the collection of the national tax claim of this case against the deposit claim (insurance account number 2238129, Oct. 26, 2004) and the insurance claim against the 00 life insurance company (insurance account number 2238129), and the plaintiff's claim against the 00 life insurance company such as the insurance claim against the 00 life insurance company of this case (insurance account number 78749381019, Nov. 5, 2004) was rejected prior to the expiration of the statute of limitations period of limitations period. Thus, the plaintiff's claim that the above defendant's claim was justified prior to the expiration of the statute of limitations period of limitations period of limitations.

The Defendant asserts to the effect that “00 does not have the effect of interrupting prescription due to the failure to receive the instant notice of attachment.” However, upon commencement of the attachment procedure, the interruption of extinctive prescription of the right to collect national taxes takes effect without regard to the notification of the delinquent taxpayer. Therefore, the Defendant’s above assertion is without merit.

D. As to the assertion that OO is bona fide and the defendant's bona fide defense

(A) Defendant’s assertion

000 did not mean that the instant transaction was conducted with intent of deception, but did not know that the instant transaction constituted a fraudulent act. Accordingly, the instant transaction may not be revoked on the ground of a fraudulent act.

(B) Determination

Before the presumption of the intention of the debtor's fraudulent intent is presumed in the case where the debtor sells real estate, which is the only property of himself, and the debtor's own property, and the fact that the beneficiary was unaware of the fraudulent act in the lawsuit for revocation of the fraudulent act, has the burden of proving himself.

In the instant case, the witness’s statement that 00 had no intention to commit a fraudulent act or that 000 witness’s statement was 100, as seen earlier, was aware that the instant tax disposition was imposed, 000 and the Defendant’s personal relation, 000 were sold within the short period after the purchase of the instant building, 00 set the sales price of the instant building, and 00 continued to reside in the instant building regardless of the instant sale, without being believed, in light of the following: (a) evidence Nos. 1 through 6, 2, 3-1, 3-2, 4, 6 through 8; and (b) evidence Nos. 1, 3-4, and 6 through 8, each of the above statements is insufficient to acknowledge the Defendant’s presumption of intention to commit a fraudulent act; and (c) the Defendant’s assertion and defense are insufficient.

3. Conclusion

Thus, the plaintiff's claim is justified, and all of them are accepted.