Revocation of Fraudulent Act

The act of giving cash donation to the young who is the only property in default of national taxes constitutes a fraudulent act, unless there is a special reason to the contrary.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2015 Doz. 43403 Revocation of Fraudulent Act

Korea

Maximum △△△△1

August 27, 2015

September 17, 2015

1. The gift contract of KRW 220,00,000 entered into on May 3, 2010 between Defendant △△△ and Kim○○, and the contract of KRW 10,00,000 entered into on May 7, 2010, and the contract of KRW 110,392,754 entered into on May 7, 2010 between Defendant △△△ and Kim○○, respectively, shall be revoked.

2. The Plaintiff shall pay 230,00,000 won to the △△△△, Defendant 110,392,754 won to the Plaintiff, and 5% interest per annum from the day following the day when this judgment became final to the day of complete payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

(a) Relationship between the Parties

The defendants are the children of Kim ○-○, a national tax payer.

B. Assignment of the instant real estate

On March 29, 2010, the ○○ Kim (hereinafter referred to as the "transfer of each real estate in this case") sold Ulsan x Ulsan x Gun x area x area 】 712 m2 per annum x 1,606 m2 per annum 712-2 m2, 712-3 m2 per annum 712-3 m2, and completed the registration of ownership transfer on April 30, 2010 (hereinafter referred to as the "transfer of each real estate in this case").

Parcel Number

Buyer

Amount of transaction (cost)

The date of sales contract

Date of registration;

712

Section AA

174,960,000

March 29, 2010

April 30, 2010

712-2

235/1247 Equity Holdings

BB

23,240,000

March 29, 2010

April 30, 2010

1012/1247 Equity Holdings

CC Kim

10,160,00

March 29, 2010

April 30, 2010

712-3

BB

29,480,000

March 29, 2010

April 30, 2010

C. Receipt of the purchase price from Kim○-○

1) On March 29, 2010, 200, 500,000 won on March 29, 2010, and 124, 960,000 on April 29, 201 】 (i) his/her own 】 the deposit account of the agricultural cooperative 】 (xx x x x x x x x x).

2) On April 29, 2010, 201, 252,720,000 won (=23,240,000 + 229,480,000 won + 23,000 won + 229,480,000 won) in front of the checks issued on April 29, 201 by thisB, including one copy, 221,00,000 won in front of the check.

(d) Each of the instant donations by Kim○-○

1) On May 3, 2010, Kim○-○ donated KRW 220,00,000 (Chapter 1, 200,000 KRW 1, 20,000,000) out of the cashier’s checks received from thisB from thisB to Defendant △△△△△ by depositing them into the deposit account 】 (xx x x x x x x x).

2) On May 7, 2010, 120,390,000 won out of the purchase price received from the ChoA on behalf of May 7, 2010 x 120,390,000 won out of the agricultural bank account x Defendant △△△△△△ (xxxxxxxxxxxxxxxxxxxxxxxx) x the amount of KRW 10,392,754 out of the Defendant 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 】 (xx x x x x x x x) each donation. (hereinafter referred to

E. A tax claim against Kim ○-○

1) Since Kim ○○ did not report and pay the transfer income tax from the transfer of each of the instant real estate, the head of Seosan District Tax Office, the Plaintiff’s head of Seosan District Tax Office, issued a prior notice of taxation on April 29, 2013 to Kim○○, and the payment deadline on June 5, 2013, determined on June 30, 2013 and notified the transfer income tax amount of KRW 295,572,992 (=determined tax amount of KRW 194,328,069 + penalty amount of KRW 38,865,613 + penalty amount of KRW 62,379,310 + penalty amount of KRW 38,865,613 in bad faith of payment).

2) The amount in arrears of the capital gains tax of Kim○, including the additional dues, until April 28, 2015, which was at the time of the filing of the instant lawsuit, is KRW 375,377,570 (hereinafter “instant tax claim”).

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 6 (if any, including a serial number; hereinafter the same shall apply), the purport of the whole pleadings

2. The assertion and judgment

A. Formation of preserved claims

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that could be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been legal relations that would serve as the basis for the establishment of the claim, and that the claim should be established in the near future. In cases where a claim has been created due to the realization of the probability in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see Supreme Court Decision 2011Da76426, Feb. 23, 2012).

On April 29, 2013, which was after the act of gift in this case, the notice of taxation of capital gains tax was given to ○○ on April 29, 2013. However, on June 5, 2013, the transfer income tax was notified on April 30, 2010, which was the last day of the month where the real estate transfer date, which was the basis of the said transfer income tax, was high probability that the said transfer income tax claim would have been established in the near future because the abstract tax liability for the said transfer income tax was established, and thereafter, it was probable that the said claim for capital gains tax was actually created by the Plaintiff’s determination and notification of capital gains tax following the transfer of the said real estate to Kim○, and thus, the said transfer income tax claim constitutes a preserved claim for revocation of fraudulent act.

In addition, the additional dues under Articles 21 and 22 of the National Tax Collection Act are the kind of incidental dues imposed as a meaning of interest for arrears on unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment by the due date by the due date by the due date by the due date by the due date, the additional dues are naturally generated under Articles 21 and 22 of the National Tax Collection Act (see Supreme Court Decision 2006Da66753, Jun. 29, 2007) and the amount thereof is also finalized (see Supreme Court Decision 2006Da66753, Jun. 29, 2007). Therefore, since it is highly probable that the above additional dues are based on the legal relations in the near future, the Plaintiff

B. Determination on the establishment of fraudulent act

1) Whether each of the instant donations against Defendant 1 △△△△ was harmful

A) Evaluation methods

The Plaintiff asserts that each of the instant donations should be evaluated as a single gift act in determining whether it constitutes a fraudulent act, and that Defendant △△△△ should separately determine each of the instant donations.

In case where a debtor continuously disposes of several properties, in principle, it shall be judged whether each act causes insolvency. However, if there are special circumstances to see the series of acts as a single act, it shall be determined as to whether the overall act occurred. Whether there is such special circumstance is identical to the other party to the disposition, whether each disposition is close to time, whether the other party and the debtor are specially related, and whether the motive or opportunity for each disposition is identical (see, e.g., Supreme Court Decision 2012Da34740, Mar. 27, 2014).

As seen earlier, considering that each of the instant donations to Defendant △△△ is the same as the other party to the instant disposition, each of the instant donations was made on May 3, 2010 and May 7, 2010, and the date of the donation was very close to the time. Defendant △△△△△ was the son of Kim ○○, and the time of the donation was immediately after the transfer of each of the instant real estate, each of the instant donations can be deemed to be a series of acts in accordance with the same intention of self-injury, and thus, whether each of the instant donations was in excess of liability should be determined by evaluating each of the instant donations as a single act.

B) The financial status of the Defendant △△△ at the time of each donation of the instant case

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 3 through 7, 100 won (= KRW 427,680,000 + KRW 252,720,000 + KRW 252,720,00) and KRW 110,160,000 for the purchase price claim against the defendant △△△△△△△△△△△△△△△△△△△△△△, which began to receive each of the instant donations to the defendant △△△△△△△△△△△△△△ on May 7, 2010, and active property was paid to the plaintiff △△△△ and KRW 427,680,00 for the instant real estate transfer price from the plaintiff △△ and ② The debtor ○○△△△△△△△△△△△△△△△, which was found to have been liable for damages to the plaintiff △△△△△△△△△, and thus, it constitutes the general tax liability against the plaintiff △△△△△○.

2) Whether the gift of this case against Defendant 1 was shotum

In contrast to the purchase price claim 110,160,00 won against KimCC on May 7, 2010, small property exceeds the tax liability of KRW 194,328,069, and as such, the status of excess of the obligation becomes worse by donating the amount of KRW 110,392,754 to the Defendant’s maximum knives, the gift contract of this case on the Defendant’s maximum knives constitutes a fraudulent act detrimental to the general creditors of the Plaintiff, etc. against the obligor Kim○.

C. Determination as to the defendants' good faith defense

The Defendants asserted that they were bona fide since they did not know about the occurrence of capital gains tax by Kim○ at the time of each gift contract in this case.

On the other hand, in a lawsuit seeking revocation of a fraudulent act, the beneficiary is presumed to have acted in bad faith, and thus, the beneficiary is liable to prove his/her good faith in order to be exempted from his/her responsibility. In such cases, whether the beneficiary is bona fide or not shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account the following: (a) the relationship between the debtor and the beneficiary; (b) the details of the act of disposal between the debtor and the beneficiary; (c) the background or motive leading up to the act of disposal; (d) whether there is no extraordinary circumstance to doubt that the terms and conditions of the act of disposal are normal transaction; and (e) circumstances after the act of disposal (see, e.g., Supreme Court Decisions 2007Da74621, Jul. 10, 208; 2006Da74621665, Apr. 14, 2006). Furthermore, in order to recognize that the beneficiary was bona fide at the time of the fraudulent act, it shall not be concluded that the beneficiary was bona fide at the beneficiary at the time of the fraudulent act.

As to the instant case, there is no evidence to prove that the Defendants were unaware of the fact that the Defendants followed the presumption of bad faith as above, and that they would prejudice the general creditors of Kim○○ by each gift contract of this case. Therefore, the Defendants’ assertion is without merit.

D. Sub-determination

Therefore, each of the gift contracts of this case concluded between Kim ○ and the Defendants is a fraudulent act, and each of them is revoked, and the plaintiff is obligated to pay to the plaintiff 230,000,000 won (220,000,000 won + 10,000,000 won) with the restoration of its original state, Defendant △△△△△ to pay the plaintiff 10,392,754 won, and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day after the day when the judgment became final and conclusive to the day when the decision is fully paid.

3. Conclusion

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