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Title
There are cases where a preserved claim can become a preserved claim even if the liability to pay tax was established after the date of fraudulent act.
Summary
Even if the tax liability has already been established after the date of fraudulent act, there is a legal relationship that serves as the basis for the establishment of the claim in the situation where the taxable period has already commenced, and there is high probability that the claim will be established in the near future based on such legal relationship, and it can become a preserved claim in the near future where the tax claim is established.
Related statutes
Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act and Restoration to Original State)
Cases
2013 Ghana 115029 Revocation of fraudulent act
Plaintiff
Korea
Defendant
Matern Kim
Conclusion of Pleadings
on October 02, 2014
Imposition of Judgment
on April 16, 2014
Text
1. The sales contract concluded on May 11, 2009 between the defendant and the non-party Kim○ (resident registration number*****************)) is revoked.
2. As to the real estate stated in the attached list to the Plaintiff, the Defendant shall implement the registration procedure for cancellation of ownership transfer registration, which was completed on May 14, 2009 by the ○○ District Court ○○○ registry office, ○○.
3. The costs of lawsuit shall be borne by the defendant.
Cheong-gu Office
The same shall apply to the order.
Reasons
1. Basic facts
A. Nonparty ○○ is a trade name “△△△△” from July 2006 to December 2009.
The material wholesale business was operated.
B. The head of △△ District Tax Office under the Plaintiff-affiliated Tax Office notified each of the value-added taxes as listed in paragraphs 1 through 5 below, while △△△ District Tax Office notified each of the following listed items 6 through 9.
Table 1
No.
Jurisdiction
Items of Taxation
Reversion Year
Date of Notification
Deadline for payment
Unpaid tax amount;
Jinay
1
Doz.
Global Income Tax
208
August 5, 2009
August 31, 2009
1,622,710
2
Doz.
Global Income Tax
209
November 2, 2009
November 30, 2009
1,161,730
Interim prepayment
3
Doz.
Global Income Tax
2007
July 1, 2010
July 31, 2010
45,746,260
4
Doz.
Global Income Tax
209
August 5, 2010
August 31, 2010
2,213,510
5
Doz.
Global Income Tax
2007
August 7, 2012
August 31, 2012
37,537,130
6
개지지
Value-added Tax
1, 2007
July 1, 2009
July 31, 2009
5,843,440
7
개지지
Value-added Tax
1, 2009
September 8, 2009
September 30, 2009
6,212,330
8
개지지
Value-added Tax
2, 2007
February 1, 2010
March 2, 2010
14,371,930
9
개지지
Value-added Tax
1, 2008
February 1, 2013
February 28, 2013
6,243,820
Total
120,952,860
C. On May 11, 2009, Kim○-○ sold real estate listed in the separate sheet, his own ownership, to the Defendant, and completed the registration of ownership transfer on the 14th of the same month.
D. Around the time of sale of the instant real estate by Kim○○, Kim○, Inc., the market price of KRW 230,000,000 did not have any specific property other than the instant real estate and deposits KRW 351,203. However, the Plaintiff was liable for the total national tax liability against the Plaintiff, as seen earlier, KRW 120,952,860, and the principal amount of ○ bank loans secured by the instant real estate amounting to KRW 93,392,00,00.
Facts that there is no dispute over recognition, Gap's evidence 1 through 8 (including a branch number if there is a ground for recognition)
each entry, the purport of the whole pleading
2. Judgment on the ground of the Plaintiff’s claim
(a) Claims for preservation;
(1) The parties' assertion
The plaintiff asserts that the taxation claim of the attached Table 1 was established before the fraudulent act, or there was a legal relationship that forms the basis of the establishment of the claim, so the defendant can become the preserved claim. The defendant asserts that the preserved claim cannot be the preserved claim since it was established after the fraudulent act.
(2) Determination
Tax liabilities are naturally established without the need of special action of the tax authorities or taxpayers for the establishment of such tax liabilities, provided that the taxation requirements set forth in the law are satisfied;
Article 21 (1) 1 and 7 of the Framework Act on National Taxes is the time when the taxable period ends (Article 21 (2) 3 of the Framework Act on National Taxes): Provided, That the time when the liability for tax payment of the income tax that is paid by interim prepayment terminates (Article 21 (1) 3 of the Framework Act on National Taxes); the taxable period of income tax is one year from January 1 to December 31 (Article 5 (1) of the Income Tax Act); the interim prepayment period is from January 1 to June 30 (Article 65 (1) of the Income Tax Act); the taxable period of value-added tax on a general taxable person is from January 1 to June 30; the second period is from July 1 to December 31 (Article 5 (1) 2 of the Value-Added Tax Act); the time when the liability for tax payment of the income tax that is paid by interim prepayment expires; and the time when the liability is established by Kim ○, 2 of the following table.
Table 2
No.
Jurisdiction
Items of Taxation
Reversion Year
Time of establishment of tax liability;
Date of Notification
Deadline for payment
Jinay
1
Doz.
Global Income Tax
208
December 31, 2008
August 5, 2009
August 31, 2009
2
Doz.
Global Income Tax
209
June 30, 2009
November 2, 2009
November 30, 2009
3
Doz.
Global Income Tax
2007
December 31, 2007
July 1, 2010
July 31, 2010
4
Doz.
Global Income Tax
209
December 31, 2009
August 5, 2010
August 31, 2010
5
Doz.
Global Income Tax
2007
December 31, 2007
August 7, 2012
August 31, 2012
6
개지지
Value-added Tax
1, 2007
June 30, 2007
July 1, 2009
July 31, 2009
7
개지지
Value-added Tax
1, 2009
June 30, 2009
September 8, 2009
September 30, 2009
8
개지지
Value-added Tax
2, 2007
December 31, 2007
February 1, 2010
March 2, 2010
9
개지지
Value-added Tax
1, 2008
June 30, 2008
February 1, 2013
February 28, 2013
Therefore, the taxes listed in the table 2 Nos. 1, 3, 5, 6, 8, and 9 were established on or before May 11, 2009 inasmuch as Kim○○ was liable to pay taxes prior to the sale of the instant real estate, taxes listed in the table 2, 4, and 7 may be the preserved claim for the right to revoke fraudulent act. Furthermore, even though Kim○○ sold the instant real estate after May 11, 2009, the liability to pay taxes was established after May 11, 2009, but there was a high probability that the tax period already commenced at the time of the sale of the instant real estate, and that the claim is established based on the existing legal relationship in the near future, and thus, it is highly probable in the near future, and thus, the claim to pay taxes may become the preserved claim for the right to revoke fraudulent act (see Supreme Court Decision 2004Da12004, Jul. 9, 2004).
(b) Fraudulent act;
Unless there are special circumstances, it is easy for the obligor to sell and consume real estate, which is almost the only property, and change in money which is easy for the obligor to consume, a fraudulent act is deemed to be a fraudulent act. The obligor’s intent of deception, which is a subjective element of a fraudulent act, is to recognize that there is a shortage of common security of claims, and thus, it does not require or intent to harm the obligee. If the obligor sells real estate, which is the only property, and alters it into money which is easy for the obligor to consume, it is presumed that the obligor’s intent to commit a fraudulent act.
In this regard, the defendant argued that the sale of the real estate of this case does not constitute a fraudulent act, since the defendant sold the real estate of this case to the defendant without any choice to sell the real estate of this case due to the lack of sale of the real estate of this case.
Therefore, in light of the fact that there is no evidence that the Defendant paid the sales price to Kim○, the Defendant used it as a business fund, and that the Defendant did not take over the obligation of the ○○○ Bank loan, which was secured by the instant real estate, and the Defendant appears to have repaid the principal and interest after the sale, it cannot be deemed that Kim○ has inevitably sold the instant real estate for the economic rehabilitation.
(c) Intention of a beneficiary;
The defendant asserts that the real estate of this case was purchased in order to assist Kim○, seeking to prepare business funds, and that the plaintiff was not aware of the harm of the creditor.
Therefore, if the debtor sells real estate, which is the only property of the debtor, and alters it with money easily consumed, the debtor's intention is presumed, and the burden of proof that the purchaser or the transferee did not have bad faith is the beneficiary.
However, there is no evidence that the defendant, a beneficiary, was unaware of the harm of the creditor at the time of the fraudulent act.
D. Sub-committee
Therefore, the sales contract of this case must be revoked as a fraudulent act, and the defendant shall be restored to its original state.
The Plaintiff is obligated to implement the procedure for cancellation registration of ownership transfer registration with respect to the instant real estate.
3. Conclusion
If so, the plaintiff's claim is reasonable and acceptable.