It is insufficient to view that there was a mutual agreement with the intent to grant transfers without compensation.

In light of the fact that the instant FF account appears to have been used as the account withdrawal of KimD’s deposit, it is insufficient to deem that there was a mutual agreement between thisCC and Defendant KimB on the grant of the remittance amount or equivalent property profit to Defendant KimB, as it is ultimately reverted to Defendant KimB, and there is no other evidence to acknowledge it.

Article 30 of the National Tax Collection Act, Article 406 of the Civil Act

2013 Gohap4686 Revocation of Fraudulent Act

Korea

1. KimA 2. KimB

July 23, 2014

August 27, 2014

1. The plaintiff's claims against the defendants are all dismissed.

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

Cheong-gu Office

1. Revocation of the donation agreement between Defendant KimA and thisCC on April 12, 2010, and Defendant KimA shall pay to the Plaintiff 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment.

2. The contract of donation between Defendant KimB and thisCC on April 12, 2010 shall be revoked within the limit of OB, and Defendant KimB shall pay to the Plaintiff 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

1. Basic facts

(a) Relationship between the Parties

KimA is the third child of thisCC, and KimB is the second child of thisCC, KimD's spouse.

B. Assignment of the instant real estate

"CC transferred OOO-dong 2982-1 miscellaneous land 7,188m2 (hereinafter "the instant real estate") to OOO on March 29, 2010, and completed the registration of transfer of ownership on April 5, 2010 for the said real estate to EEO Corporation." (c) Money transfer by thisCC.

“CC received OOO won of the instant real estate from EEE Corporation on April 12, 2010, and remitted each of the instant real estate to an account in the name of the Defendants as listed in the following table (hereinafter “each of the instant remittance”). [Attachment] omitted

D. The Plaintiff’s taxation claim against thisCC

Since thisCC did not report and pay capital gains tax on the transfer of the instant real estate, the director of the Changwon Tax Office under the Plaintiff’s control determined and notified the deadline for payment to thisCC on September 11, 2012 and the OOO of capital gains tax on September 30, 2012.

Facts that there is no dispute over the basis of recognition, entries in Gap evidence 1 through 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the cause of the claim

A. The parties' assertion

(1) The plaintiff's assertion

(A) At the time of each remittance of the instant case, the Plaintiff had a comprehensive real estate holding tax claim for thisCC, an OOO (including additional tax), an OOO (including additional tax), and an OOO (including additional tax).

(B) ThisCC donated the above money by remitting it to the account held in the name of Defendant KimA, an infant, to the account held in the name of Defendant KimB, and Defendant KimB, who was her in excess of the debt. This constitutes a fraudulent act, and thus, constitutes a fraudulent act, it shall be revoked within the scope of the Plaintiff’s preserved claim, and due to its restitution, Defendant KimA is obligated to pay to the Plaintiff the amount of OE and its delay damages, and Defendant KimB is obligated to pay OE and its delay damages to the Plaintiff, respectively.

(2) The defendants' assertion

(A) Of each remittance of this case, "OO-O-O-O-O-OOOO-transfer of the F Account under the name of defendant KimB (hereinafter "the last remittance of this case") was not a fraudulent act, since the active assets of thisCC up to the time of the prior remittance of this case, except for the remittance of this case in the F Account under the name of defendant KimB (hereinafter "OO-O-O-O-O-O-O-O-B; hereinafter "the last remittance of this case") were in excess of the amount of the plaintiff's preserved claim, the remaining remittance except the last remittance of this case among each remittance of this case (hereinafter "the preceding remittance of this case") was not a fraudulent act; (b) since the FB account under the name of defendant KimB who was deposited in the last remittance of this case by the defendant KimB, the "O-O-O-O-O-O Kim FO-O-O, Kim FO-O-O-O-O-O's transfer of the money between the defendant KimB and the above account was actually used by the defendant KimB.

(1) The plaintiff's preserved claim

(A) In principle, it is required that a claim protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be deemed a fraudulent act. However, at the time of such fraudulent act, there is a high probability that there has already been a legal relationship that serves as the basis for the establishment of a claim, and that the claim has been established in the near future in the near future. In cases where a claim has been created by realizing the probability in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012).

(B) On September 11, 2012, after the conclusion of the instant sales contract, the Plaintiff decided and notified the transfer income tax to CC as seen earlier. However, on March 31, 2010, the last day of the month to which the real estate transfer date, which is the basis of the said transfer income tax, belongs, there was a high probability that the said transfer income tax claim will be established in the near future due to the establishment of abstract tax liability for the said transfer income tax, and thereafter, the said probability has been realized and the Plaintiff actually generated the said claim for transfer income tax by determining and notifying the said transfer income tax to CC. Thus, the said transfer income tax claim becomes a preserved claim for revocation of fraudulent act.

(C) However, there is no evidence to prove that the Plaintiff had a comprehensive real estate holding tax claim equivalent to the OOO won at the time of the instant remittance, and since the additional OOOO's claim on the capital gains tax was incurred only after the instant remittance, each of the above claims cannot be the preserved claim for revocation of the instant fraudulent act.

(2) Whether each of the instant remittance constitutes a fraudulent act

(A) The financial status of thisCC at the time of the instant remittance

1) Active property of thisCC

Comprehensively taking account of the overall purport of evidence Nos. 3 and 5 and the purport of each of the arguments, thisCC at the time of each of the instant transfers on April 12, 2010 can be acknowledged that it had the deposit claim of an OF cooperative in the OF cooperative and the fact that it had the area of 218 square meters prior to 915 OO-dong 00 OO-dong 915 OO-dong 915 OO-dong.

2) The small property of thisCC

According to Gap evidence No. 5, at the time of the transfer of each of the instant remittances, thisCC may recognize the fact that it had been liable to KimG, other than the OOOO members of the instant transfer income tax liability.

(B) Whether the preceding remittance of this case constitutes a fraudulent act

1) Since a fraudulent act refers to an act detrimental to the creditor by reducing the active property or increasing the negative property, or by deepening the fact that the debtor has already been in excess of his/her obligation, a certain act should be premised on the fact that such an act resulted in the above situation (see, e.g., Supreme Court Decision 2000Da7783, Oct. 25, 2002).

2) According to the above facts, thisCC had active property equivalent to the OOO won at the time of the instant remittance. However, the small property is limited to the OOO won (=OOOOO won + OOOOOO director). Accordingly, even if the instant prior remittance was conducted by thisCC, active property did not reach a state of excess of its liability.

3) Therefore, since the preceding remittance cannot be deemed as a fraudulent act, the Plaintiff’s assertion based on such premise is without merit.

(C) Whether the instant final remittance constitutes a fraudulent act

1) In order for a remitter to have concluded a donation contract with respect to money remitted to the account of the account holder in the name of the deposit, it shall be interpreted that, first of all, the remitter and the account holder have the intention of mutual consent between the parties on the donation and grant of the transferred money, as it is ultimately reverted to the account holder in the name of the deposit. Furthermore, the burden of proof as to each of the aforementioned transfers shall be deemed to be a fraudulent act that is subject to the obligee’s right of revocation.

Meanwhile, in the event of a transfer of money to another person’s deposit account, such transfer may be made based on various legal causes. The mere fact that a person with a certain personal relationship knowingly consented or understood to transfer money owned by him/her to his/her own deposit account or to allow him/her to actually control his/her own deposit account for the purpose of evading the transfer of money to another person’s deposit account cannot be easily concluded that there was an agreement between the remitter and the account holder with the intent to grant the remittance amount free of charge as above to the account holder, barring any special circumstance. This cannot be readily concluded that, in the case of a deposit account opened through a explanation and confirmation procedure under the real name of the financial company, the nominal owner has the right to claim the return of the money as a party to the deposit account, even if this is related to the financial institution where the account was opened, and the legal relationship between the remitter and the account holder does not immediately change (see Supreme Court Decision 2012Da30861, Jul. 26, 2012).

2) On the instant case, in full view of the facts as seen earlier, the fact that CC remitted OOOOO to the instant FF account under the name of Defendant KimB, and comprehensively taking account of the evidence No. 2, the fact that after the instant last remittance, OOOO was transferred from the instant FF account to another account in the name of Defendant KimB, and that various insurance premiums were transferred in the future, such as HH and II life, once a month.

However, the following circumstances, which are acknowledged by comprehensively taking account of the statements in Eul evidence Nos. 2, 4, and 5, witness KimD's testimony and the purport of the entire pleadings, were transferred from the instant FF account to the account in the name of KimD, the husband of defendant KimB after the instant last remittance. On May 25, 2010, the OD was transferred to the account in the name of defendant KimA, the birth of the above KimB, the birth of the OD, and (B) after the establishment of the instant FF account, and (c) after the instant FF account, KimD deposited the 70 times in the instant FF account, while the instant FF account appears to have been used in the name of KimD's withdrawal of deposits over ten times, and there is no evidence to acknowledge that the above FF account was insufficient to recognize that the above FF account was transferred to the defendant KimB's intent or its profits without any further reason.

(D) Judgment on the Plaintiff’s assertion

1) The Plaintiff asserts that each of the instant remittance acts constitutes a fraudulent act, since thisCC’s series of acts of remitting money to the Defendants shall be deemed as a single donation act, and since the above donation act resulted in an excess of liability, each of the instant remittance acts constitutes a fraudulent act.

2) In a case where a debtor has engaged in a series of acts of disposal of property, in principle, whether each act causes insolvency shall be determined depending on whether each act has occurred. However, in a case where there are special circumstances to see a series of acts as a single act, whether such special circumstances exist shall be determined by comprehensively taking into account whether the other party to the disposition is the same as the other party to the disposition, whether each disposition is close to time, whether the other party and the debtor are in special relationship with the other party, and whether the motive or opportunity of each disposition are the same. However, even in a case where there is no special relation, such as that each act of disposal is conducted in connection with a series of legal processes to achieve the same purpose, the scope shall not be comprehensively evaluated as one act without permission (see, e.g., Supreme Court Decision 2013Da33874, Jul. 25, 2013).

3) The Plaintiff asserts that each remittance of this case should be deemed as a single donation. However, as seen earlier, the other party to each remittance of this case differs from the Defendants, and there is no circumstance to treat them equally. As long as the accounts that have remitted money are different from each other, the mere fact that the source and the date of donation are the same, it cannot be deemed that each remittance was conducted in connection with each other in the course of a series of legal process to achieve the same purpose. Thus, each remittance of this case cannot be deemed as a special circumstance that each of the remittance of this case should be comprehensively evaluated as a single fraudulent act.

Therefore, each remittance of this case shall be deemed a separate juristic act, and whether it constitutes a fraudulent act shall be determined by comparing the tax liability at the time of each remittance with the amount of active property remaining.

4) The Plaintiff’s above assertion is rejected.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is without merit, and each of them is dismissed. It is so decided as per Disposition.