Busan District Court-2013-Gohap-45382 ( August 14, 2014)

sales of the sole real property by a delinquent taxpayer to Kak is a fraudulent act

The degree of excess of debt has deepened by concluding a sales contract for the instant real estate and completing the registration of transfer of ownership, which constitutes a fraudulent act subject to creditor's right of revocation due to an act causing the shortage of common security of the general creditors including the Plaintiff.

Article 35 of the Framework Act on National Taxes

Busan High Court 2014Na52438 Revocation of Fraudulent Act

Korea

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Busan District Court Decision 2013Na45382 Decided August 14, 2014

April 9, 2015

May 21, 2015

1.The judgment of the first instance shall be modified as follows:

A. The sales contract concluded on August 5, 2008 between the defendant and a Aa with respect to the real estate listed in the separate sheet shall be revoked within the limit of KRW 97,922,566.

B. The defendant shall pay to the plaintiff 97,922,566 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

C. The plaintiff's remaining claims are dismissed.

2. 1/20 out of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The sales contract concluded on August 5, 2008 between the Defendant and Aa with respect to the real estate listed in the separate sheet shall be revoked within the limit of KRW 100,902,00. The Defendant shall pay to the Plaintiff 100,902,000 with interest of KRW 5% per annum from the day following the day when the judgment of this case 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. Basic facts

(a) Relationship between the Parties

From August 25, 2006 to June 30, 2009, the Defendant engaged in the textile manufacturing business as the representative of 'Bbbbbbbbb(hereinafter referred to as ‘bbb')' from 00 Dong-dong 1, 2009, Busan Shipping Daegu 00 Do-dong 0160-000 Do-dong 1, 2009.

B. The Plaintiff’s taxation against Aa

Aa at the time of the return of value-added tax for the last two years of 2007, the head of the Suwon Tax Office under the Plaintiff found that aa received the processed tax invoice without any actual transaction, and that Bbbb did not report the global income tax on the recognized surplus income accrued in Bbbb, and that on December 29, 2009, a(a) imposed the global income tax amount of KRW 115,757,481 as of March 31, 2010 for a taxable period of 2007 on Aa(207). Aa(a) did not pay it up to the date, and thus, it did not pay it up to 146,134,00 won for national tax amount including additional dues.

(c) Trade between aa and the Defendant.

Aa on August 5, 2008, the defendant entered into a sales contract for real estate listed in the separate sheet (hereinafter referred to as "real estate of this case") with the defendant (hereinafter referred to as "the sales contract of this case") and completed the registration of ownership transfer on the same day.

D. At the time of the instant sales contract, aa’s property

At the time of August 5, 2008, the date of the instant sales contract, aa’s property details are as listed in the following table:

- - omitted -

E. Cancellation of the right to collateral security regarding the instant real estate

On May 25, 2004, the establishment of the right to collateral security (hereinafter “right to collateral security”) was established with respect to the instant real estate as 00 cooperatives. After the instant sale, the registration of establishment of the right to collateral security (hereinafter “right to collateral security”) was cancelled on November 17, 2009. At the time of the instant sale contract, the said right to collateral security was KRW 30,000,000.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 17 (including each number; hereinafter the same shall apply), Eul evidence Nos. 5, and the result of response to an order to submit financial information to 00 cooperatives by the court of the trial, the purport of the whole pleadings

2. Determination

A. Formation of preserved claims

According to Article 21 (1) 1 of the Framework Act on National Taxes, the obligation to pay income tax is naturally established without any separate act of the tax authority or the taxpayer when the taxable period ends, and furthermore, according to Article 5 (1) of the Income Tax Act, the taxable period of income tax is from January 1 to December 31.

With respect to the instant case, the Plaintiff’s global income tax claim against the Plaintiff in 2007 against the Plaintiff was established on December 31, 2007, which was the end of the taxable period. The instant sales contract was subsequently concluded on August 5, 2008, and thus, the said tax claim is the preserved claim of the obligee’s right of revocation.

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 in arrears 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 without the due date of payment by the due date, the additional dues naturally accrue pursuant to Articles 21 and 22 of the National Tax Collection Act (see Supreme Court Decision 2006Da66753, Jun. 29, 2007) and the amount thereof is determined (see Supreme Court Decision 2006Da66753, Jun. 29, 2007). Since it is highly probable that the above additional dues claims are based on the legal relations in the near future, the tax claims of the Plaintiff, including the additional dues, constitute the entire right

(b) The intention to commit fraudulent acts and to injure himself;

According to the above facts of recognition, aa has deepened its debt excess status by concluding a sales contract with the defendant for the instant real estate and completing the registration of transfer of ownership, which constitutes a fraudulent act subject to creditor's right of revocation as a result of the lack of common security of the general creditors including the plaintiff, and as long as a fraudulent act referred to in Aa is recognized, the defendant's bad faith as the beneficiary is presumed.

C. Defendant’s bona fide initiative

In regard to this, the Defendant purchased the instant real estate from Aa to KRW 85 million, and asserts that he is a bona fide beneficiary since he was unaware of the fact that he was in excess of a debt under Aaa, thereby accepting the obligation to return the lease deposit for the instant real estate, KRW 35 million,00,000,000,000,000 for the payment of the purchase price, in lieu of the payment of KRW 65,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won,

In light of the following circumstances that can be acknowledged by comprehensively considering the overall purport of arguments in Gap evidence and evidence Nos. 11, 14, 15, and Eul evidence No. 3, the defendant was already a move-in report to the real estate of this case around January 2008, which is the transfer of the contract of this case, and ② at the time of the contract of this case, the defendant seems to have no special revenue or property during military service at the age of 22 years, ③ the defendant's money and mother in relation to the source of the purchase price of the real estate of this case did not submit all the materials proving such assertion, and in light of the relationship between the defendant and Aa with the defendant and his mother, and the process of purchasing the real estate of this case, there is no evidence to acknowledge that the defendant's testimony by only the statement Nos. 1 and 6, and witness Aa of the trial of this case is insufficient to acknowledge that the defendant's intention to harm the real estate of this case was followed by the defendant's intention to harm the real estate of this case.

(d) Revocation of fraudulent acts and reinstatement;

(i) the method of reinstatement;

In a case where a juristic act on a certain 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 committed on a 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 the registration of creation of mortgage is cancelled by repayment, etc. after a fraudulent act, ordering the revocation of a fraudulent act and the restoration of the real estate itself to the extent that the portion which was not initially constituted a joint security of the general creditors would result in a violation of fairness and fairness. Therefore, an order to cancel a fraudulent act and seek compensation for the value thereof is limited to the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate, and such calculation shall be based on the time of the conclusion of the trial at fact-finding proceedings (see, e.g., Supreme Court Decision 201Da

As seen earlier, the establishment registration of a neighboring mortgage with the 00 cooperative as a mortgagee was completed with respect to the instant real estate. Since the registration of ownership transfer was completed with the Defendant’s name and the registration of the establishment of a neighboring mortgage was cancelled, the instant sales contract should be cancelled within the extent of the balance remaining after deducting the secured debt amount which was cancelled from the market price of the instant real estate as of the date of the closing of pleadings, and the Defendant shall be obligated to return the value of the instant real estate

On the other hand, the defendant did not know the name of cc and 15 million won of the lease deposit in the first floor of the real estate of this case, which is composed of 20 million won of the lease deposit. However, since the defendant succeeded to the obligation to return the lease deposit in the purchase of the real estate of this case, it is argued that the above obligation to return the lease deposit should also be deducted from the above obligation to return the lease deposit in calculating the amount of compensation. However, it is not sufficient to recognize that only the statement of 6 Eul and the testimony of the witness Aa of the party to the Housing Lease Protection Act at the time of the sale contract of this case satisfies the requirements for preferential payment under the Housing Lease Protection Act at the time of the sale contract of this case, or that the lessee was a small lessee, and there is no other evidence to acknowledge this otherwise, the above argument of

2) Scope of revocation and compensation for value

Where part of a fraudulent act is revoked due to cancellation of mortgage, etc. and compensation for value is made, the revocation and compensation for value shall be limited to the smaller amount between the creditor's preserved claim and the joint collateral value of the instant real estate which is the object of the fraudulent act and the creditor.

Comprehensively taking account of the overall purport of the arguments in evidence Nos. 4, 7-1, and 17, the market price of the instant real estate among the real estate is KRW 89,726,40 as of May 30, 2014 (i.e., officially assessed individual land price x 120.6 square meters x 120.6 square meters). The market price of the instant real estate among the instant real estate is 38,196,166 (new unit price / 750 square meters), 45, 400, 45, and 17 years for remaining years, and thus, the market price of the instant building is 38,196,160,750,000 x 17,000 x 13814,000 won as of May 30, 2014.

Therefore, if the market price of the instant real estate is 127,922,566 won (=89,726,400 won + 38,196,1666 won) at the time of the instant sales contract, the joint collateral price of the instant real estate is 97,922,566 won (=136,909,900 won - 30,000,000 won) at the time of the instant sales contract.

3) Sub-determination

Ultimately, the revocation of the above fraudulent act and compensation for damages shall be made within the limit of KRW 97,922,566, which is the smaller amount between the above joint collateral value and the above amount of the secured claim. Thus, the sales contract of this case shall be revoked within the limit of KRW 97,922,566, and the defendant shall be liable to pay the plaintiff the damages for delay calculated at the rate of KRW 97,922,566 with the equivalent amount and the damages for delay calculated at the rate of KRW 5% per annum as stipulated in the Civil Act from the day after the

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is partially accepted and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.