Daejeon District Court Decision 2013Gahap20157 Decided Gong20157

The second taxpayer's selling real estate to his/her child before the notice of designation of the taxpayer constitutes a fraudulent act.

(As in the judgment of the court of first instance), the act of the second taxpayer prior to the designation of the person liable for secondary tax payment to sell real estate to his own child after the establishment of corporate tax and value-added tax on the person liable for original tax payment became final and conclusive constitutes a fraudulent act.

Article 406 (Right of Revocation) of the Civil Act, Article 30 (Cancellation of Fraudulent Act) of the National Tax Collection Act

2014Na10517 Revocation of Fraudulent Act

Korea

A fixed A

September 3, 2014

October 29, 2014

1. The defendant's appeal is dismissed.

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

Cheong-gu Office

1. Purport of claim

The purchase and sale contract concluded on August 24, 201 with respect to the real estate listed in the separate sheet between the Defendant and JungB shall be revoked within the limit of KRW 000,000,000. The Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

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

1. Facts of recognition;

(a) A taxation claim;

(1) On October 25, 2011, SS Development Co., Ltd. (hereinafter referred to as “SS Development”) made a preliminary return of value-added tax (from July 1, 2011 to December 31, 2011 during the preliminary return period, from July 1, 2011 to September 30, 201). However, the value-added tax reported was not paid by October 25, 201, which was the due date for the payment of the value-added tax, on the ground that the Plaintiff’s DNA tax secretary was not paid by December 6, 2011, on the ground that it was not paid by the preliminary return on December 6, 2011, the amount of the tax calculated on February 20, 201 was corrected as KRW 00,000,000, and the said tax amount was notified to be paid on December 13, 2011.

(2) On December 28, 201, SS Development paid only KRW 00,00,000 among the above revised tax amount on the ground that the remaining amount of KRW 00,000,000 among the above revised tax amount constitutes a serious crisis of business as stipulated in Article 15(1)3 of the National Tax Collection Act due to the reduction of construction order and the difficulty in collecting construction payment claims, etc., and the Plaintiff accepted it and extended the payment period. The SS Development again was deferred as above on April 24, 2012 due to the serious crisis of business as seen above, but thereafter, on the ground that SB, the representative director of SS Development, transferred its management right to XX due to the serious crisis of business as seen above, the Plaintiff applied for the postponement of collection until July 31, 200, and the remaining collection amount was deferred by 300,0000,0000,0000 won, and the Plaintiff applied for the postponement of collection until July 31, 2001.

(3) The SS Development paid only KRW 00,000,000 on May 11, 2012, and did not pay the remaining KRW 00,000,000 until the deferred payment period. The amount of KRW 00,000,000 on the issue was not paid on June 13, 2012.

(4) On December 17, 2012, the Plaintiff: (a) at the time of the instant preliminary return, the oligopolistic shareholder was designated as the secondary taxpayer; and (b) around December 20, 2012, the Plaintiff notified the Plaintiff to pay KRW 00,000,000,000, which is the secondary tax liability of the said unpaid value-added tax, by January 6, 2013; (c) however, the Plaintiff did not pay the said amount; and (d) the amount in arrears, including the additional charge, by the time of the instant lawsuit, is KRW 00,000,000.

(b) disposal by a Party B;

On August 24, 2011, JeongB entered into a sales contract with the Defendant, who is his father, to sell for KRW 00,000,00 the real estate listed in the separate sheet owned by JungB (hereinafter referred to as the “forest of this case”). The Defendant completed the registration of ownership transfer with respect to the forest of this case by the Suwon District Court No. 49585, Sept. 8, 201.

(c)the state of excess of liabilities of the PartyB;

[1] At the time of the instant purchase and sale contract, JungB bears at least KRW 0,00,00,000 (at least KRW 00,000,000 for the obligation toCC Livestock Industry Cooperatives + KRW 0,000,000 for the obligation to guarantee the JF + + KRW 000,000 for the obligation to guarantee the JF + KRW 000,000 for the first securitization specialized company 201H/S 1,000 + KRW 0,000 for the obligation to guarantee the guaranteed obligation to the Small and Medium LLB Bank even if the Defendant asserted that the obligation to the Plaintiff was active property, and as at the time of the instant purchase and sale contract, only KRW 0,000,00 for the obligation to the Small and Medium LL Bank.

[Ground of Recognition] A without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 11 through 19, Eul evidence Nos. 1, Eul evidence Nos. 1, Eul 9 and 10 (including various numbers), witness tinG testimony, part of this court's testimony, order of submission of each financial transaction information to the J Fund No. 1 Securitization Specialized in J Fund No. 201H, Daejeon Central Branch Director of KK Bank, KK Bank U.K. head of LL bank management department, result of order of submission of tax information to DD head of this court, the purport of the entire pleadings as a whole.

2. Determination on this safety defense

The defendant asserts that the lawsuit of this case filed after the lapse of the exclusion period of one year thereafter is unlawful, since the plaintiff knew of the cause for revocation of fraudulent act within the period from September 8, 201 to September 3, 2011, which completed the registration of ownership transfer with respect to the forest of this case.

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the cause for revocation" means the date when the debtor becomes aware of the fact that he/she committed a fraudulent act while being aware that he/she would prejudice the creditor, which is not sufficient to say that the debtor merely knows the fact that he/she conducted a disposal of the property, and further, it is necessary to know the existence of a specific fraudulent act and to know the fact that the debtor had an intent to deceive the debtor (see Supreme Court Decision 2000Da3262, Sept. 29, 200).

The evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff was aware of the fact that the Plaintiff entered into the instant sales contract within the period between September 8, 201 and March 201, and that the joint collateral, which caused a shortage of joint collateral or had already been insufficient, became insufficient to fully satisfy the claim, and that the Plaintiff had been aware of the intent to harm the Plaintiff, and there is no other evidence to acknowledge it. Rather, in light of the fact that the Plaintiff was aware of the intent to harm the Plaintiff, there is no evidence to acknowledge it, and rather, there is no evidence to support the fact that the Plaintiff was aware of the fact that the Plaintiff had been aware of the intent to harm the Plaintiff, and as a result, in December 17, 2012, the Plaintiff was designated as the secondary taxpayer and the fixedB did not pay taxes, the Plaintiff was aware of the fact that the Plaintiff was investigating by doubting the instant sales contract as a fraudulent act during the process of selecting the fixed BB around January 2013, and the Plaintiff’s allegation in the instant lawsuit is without merit.

3. Judgment on the merits

(a)the existence of preserved claims;

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, at the time of the juristic act, there has already been established a legal relationship that serves as the basis of establishment of the claim, and there is high probability that the claim would have been created in the near future. In the near future, where a claim is realized and its probability has arisen in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decisions 2004Da12004, Jul. 9, 2004; 2009Da81920, Sept. 29, 2011).

According to the above facts, although the secondary liability for tax payment of YB at the time of the instant sales contract was not established due to the lapse of the time limit for the principal liability for tax payment, it was highly probable that the taxation period of 2011 for SS development was already commenced, and SSB was an oligopolistic shareholder of SS development at the time of the instant sales contract. Accordingly, the legal relationship, which forms the basis for establishing the Plaintiff’s tax claim rights against SSB at the time of the instant sales contract, was generated, and SS development did not pay the value-added tax at the time until October 25, 2011, which is the due date for payment, until December 31, 2011. Since SS development did not pay the value-added tax at the time until December 31, 201, which is the due date for payment, it was highly probable that the above tax claim for SSB was established in the near future, and thus, it is probable that the tax claim of 000 days prior to the commencement and payment of the instant tax claim is not accepted.

B. Establishment of fraudulent act

(1) 위 인정사실 및 갑 제7, 9호증, 갑 제14호증의 1, 을 제2호증, 을 제8호증의 2의 각 기재, 증인 석GG의 일부 증언에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정들, 즉 ① 이 사건 매매계약 당시 만 32세로 대전에 주소를 둔 피고가 장래에 전원주택을 짓기 위하여 000,000,000원을 들여서 아버지 소유로 평택시에 있는임야를 매수한다는 것 자체가 매우 이례적이고(그 전후로 정BB과 SS개발의 주식 37.5%를 보유하고 있던 그 처인 이NN는 피고의 여동생인 정MM, 정QQ에게 다른 부동산을 증여 또는 매도하기도 하였다), 더욱이 피고는 세무서에 이 사건 매매계약에 의하여 이 사건 임야를 취득한 것이 아니라 정BB으로부터 증여를 받았다고 신고를 한 후 증여세를 납부하였으며, 을 제3호증(예금거래내역조회표)만으로는 피고가 정BB에게 매매대금으로 송금하였다는 000,000,000원이 피고가 실제로 출연한 금원이라고 단정하기 어렵고, 정BB이 그 매매대금을 어디에 사용하였는지도 불확실하여, 정BB과 피고 사이에 실제로 이 사건 매매계약이 체결되었는지도 의심스러운 점, ② 가사 이 사건 매매계약이 실제로 체결되었다고 하더라도, 이 사건 매매대금 000,000,000원은 그 당시 이 사건 임야의 공시지가액 000,000,000원보다 불과 0,000,000원이 많을 뿐이므로, 이 사건 임야의 지목 등을 고려한다고 하더라도 그 매매대금은 시세보다 낮게 책정되었다고 할 것이고, 그렇다면 이 사건 매매계약으로 인하여 정BB의 총재산이 감소되었다고 보이는 점, ③ 이 사건 매매계약 당시 정BB은 채무초과상태에 있었고, 그 채무 중 상당수가 그가 대표이사로 있던 SS개발의 채무를 보증한 것인데, SS개발은 이 사건 매매계약 이전인 2011. 5. 18.경 0,000,000,000원의 사채를 발행하는 등 그 무렵 자금 사정이 그리 좋지 않았고(2011년 한 해 동안 부채가 00억 원 이상 증가하였고, 이 사건 부가가치세를 제대로 납부하지 못하였을 뿐만 아니라 사업이 중대한 위기에 처하였다고 징수유예신청도 한 바 있다), 대표이사였던 정BB은 그와 같은 사정을 충분히 인지하고 있었던 것으로 보이는 점 등을 종합하면, 특별한 사정이 없는 한 이 사건 매매계약은 원고 등의 일반채권자를 해할 의사로서 한 사해행위에 해당한다고 할 것이다. 또한, 이 경우 채무자인 정BB으로서는 원고 등의 일반채권자를 해하게 되리라는 사정을 인식하고 있었다고 봄이 타당하고, 수익자인 피고도 악의로 추정된다.

(2) As to this, the Defendant alleged to the effect that he actually purchased the forest land of this case from JungB for the purpose of holding a house for a long time, and that he was unaware of the general creditor as a result of the instant sales contract, but in light of the circumstances examined earlier, in particular, in light of the relationship between the Defendant and JungB, the evidence submitted by the Defendant is insufficient to recognize that the Defendant was bona fide, and there is no other evidence to acknowledge it. Thus, the Defendant’s assertion is without merit.

(3) Sub-decisions

Therefore, the plaintiff can exercise the right of revocation against the defendant and seek restitution.

(c) Methods and scope of reinstatement;

(1) Method of restitution

In a case where a juristic act on real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc. However, in a case where a fraudulent act is conducted on real estate on which a mortgage is established, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where a registration of creation of mortgage was cancelled by repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself would be an order to recover the portion that was not originally constituted a joint security of the general creditors, and would result in a violation of equity. Therefore, an order to reinstate the real estate itself is merely entitled to seek compensation for the value of the real estate within the extent of the balance obtained by deducting the secured debt amount of the mortgage (see, e.g., Supreme Court Decision 2001Da33734, Dec.

On April 25, 2005, at the time of the instant sales contract, the Suwon District Court (Seoul District Court Decision 78,000,000 won with respect to the forest land of this case as of April 25, 2005) was established as a collateral security right of the debtor, ENN, andCC Livestock Industry Cooperatives (CCR). However, at the time of the instant sales contract, the secured debt with the amount of KRW 00,00,000 with the amount of KRW 00 at the time of the instant sales contract was repaid thereafter, and the cancellation of the registration of establishment of a collateral security right of this case on February 16, 2012 is not a dispute between the parties, or can be recognized in view of the overall purport of the statement and oral argument, the instant sales contract should be revoked within the extent of the balance remaining after deducting the secured debt amount of the said collateral security right from the forest value of this case, and the beneficiary shall be liable to compensate for the amount as the beneficiary.

(2) Scope of revocation and equivalent compensation

Where part of a fraudulent act is revoked due to cancellation of mortgage, etc. and compensation for value is required, the revocation and compensation for value shall be limited to the amount of joint collateral held by the object of the fraudulent act, the amount of creditor's preserved claim, and the amount of profit acquired by the beneficiary, unless there are special circumstances.

The Plaintiff’s preserved claim amount is KRW 00,000,000, and the joint secured value of the forest of this case is at least KRW 000,000,000,000 for the beneficiary’s profit (the officially assessed value of the forest of this case as at the time of the sales contract of this case - KRW 000,000,000 for the actual secured obligation amount - the secured obligation amount is as seen earlier. As such, the Plaintiff’s preserved claim amount is at least KRW 00,000,000 for the above preserved claim amount, which is the largest amount, shall be limited to the scope of revocation of fraudulent act and compensation for value.

(3) Sub-decisions

Therefore, the sales contract of this case is revoked within the limit of KRW 00,000,000, and the defendant is obligated to pay to the plaintiff compensation for damages for delay calculated by the rate of 5% per annum under the Civil Act from the day after the day when the judgment became final and conclusive to the day of full payment.

4. Conclusion

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