Daegu District Court Decision 2012Gahap184, 23 August 2014

Cash donation paid to the spouse to be exempted from the disposition on default of national taxes constitutes a fraudulent act.

The cash donation contract between the defendant and his/her spouse is made with the knowledge that it would prejudice the person who has the right to tax payment in order to be exempted from the disposition on default of national taxes. However, it cannot be said that the repayment of the deposit claim is unclear, and it should be included in active property.

Cancellation of investigation new acts under Article 30 of the National Tax Collection Act

§ 406. Revocation of Civil Code

2013Na21193 Revocation of Fraudulent Act

Korea

KimA

Daegu District Court Decision 2012Gahap1184 Decided August 23, 2013

August 20, 2014

September 24, 2014

1. Revocation of a judgment of the first instance, and the plaintiff's claim corresponding to the revoked part (the purport of the claim in the trial); and

The claim portion before expansion is dismissed.

2. The plaintiff's claim extended in the trial is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A. B B and the Defendant cancel all of the gift agreements of KRW 50,000,000 entered into on July 9, 201, 2000 concluded on July 18, 201, 200,000,000 concluded on July 18, 201, and KRW 150,000,000,000 entered into on July 20, 201, to the extent of KRW 346,828,70.

B. The defendant shall pay to the plaintiff 346,828,700 won with interest rate of 5% per annum from July 20, 201 to the day of full payment. [The plaintiff shall be revoked at the first instance court within the limit of 312,023,400 won, and the above 312,023,40 won as well as damages for delay calculated at the rate of 5% per annum from the day after this judgment became final to the day of full payment.] However, the part of the claim extended at the trial is deemed to have been filed by the plaintiff as above.

2. The defendant's purport of appeal

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

1. Basic facts

The following facts do not conflict between the parties, or evidence A from 1 to 10, 12 to 20:

entry of the certificate of Nos. 1, 2, 3, 5, 6, and 7 (including branch numbers where no special indication is made).

The same shall apply hereinafter) may be recognized in accordance with the purport of the whole pleadings, and there shall be no objections.

(a) Sale of real estate by ParkB;

1) On May 16, 201, ParkB: (a) between the CCC Village Fund and ParkB, on the following grounds: (b) JJO-O, O-O, O-O, O-O, O-O, O-O land (large scale of 605 square meters, road 43 square meters) and its ground; (c) 1,90,00,000,000 won (hereinafter referred to as “JJJ-dong Real Estate”) for the purchase price of KRW 1,90,00,000 for the remainder of 1,710,000,000,000 won for the contract date, and the remainder of 1,00,000,000,000 won were sold to CCC by June 15, 201; and (b) B, from 10, to 300,000,000 won for the remainder of the sale price for the above building, the 30,0000,000,00,00.

2) On June 15, 201, 201, the CCC Village Fund paid 190,000,000 won for down payment to ParkB on the date of the above real estate sales contract. On June 15, 2011, 60,000,000 won was deposited in ParkB’s regular deposit account (91,00-P-L-X) at ParkB’s ordinary deposit account (91,110,000,000 won (1,900,000-190,000,000-60,000 won) for the remaining real estate, and transferred 52,1712,712,000,000 won, which was established until JJdong on the remaining date after deducting the amount equivalent to each collateral security obligation and the rent already accrued, to the above real estate sales contract on the date of the remainder payment, the CCC Village Fund Fund’s remaining 1,000,000.

B. Plaintiff’s transfer income tax claim against ParkB

1) When ParkB filed a return of transfer income tax with the Plaintiff (the director of the tax office of the tax office of the state) on the sale of the said JJ real estate, the Plaintiff (the director of the tax office of the state tax) shall impose transfer income tax on the ParkB on November 10, 201, stating that “the transfer income tax of KRW 284,322,490 due to the sale of the said real estate shall be paid by November 30, 201.”

After notification of the disposition, on December 13, 2012, the decision was made to reduce the capital gains tax of KRW 18,148,231 according to the request for correction of capital gains tax by ParkB.

2) However, ParkB did not pay up to now reduced capital gains tax amounting to 266,174,259 won (284,322,490 won-18,148,231 won =26,174,259).

(c) monetary donation to the defendant of ParkB;

1) On July 9, 201, 201, KimD and Maximum EE set the purchase price of KRW 500,000,000 and sell to the Defendant the remainder of KRW 250,00,000 on the date of the contract, intermediate payment of KRW 200,00,00,000 on July 18, 201, between the Defendant and the Defendant, who is the wife of GaB, KimD, KK-dong 418-3, 908, 414-8, 404 square meters and its ground buildings (hereinafter “each of the above land and buildings”), which is the joint ownership of MaD, and the Defendant shall pay each real estate sales contract on August 4, 201.

2) ① On July 9, 201, 201, 50,000 won was remitted from the CCC Village Depository account (904-L-X) in the name of ParkB to the Agricultural Cooperative account in the name of KimD. ② On July 18, 2011, 50,000 won was remitted from the CCC Village Depository account in the name of KimD to the Agricultural Cooperative account in the name of KimD’s name, and 150,000,000 won was withdrawn from the Agricultural Cooperative account in the name of ParkB (72102-56-04297) or deposited from 00,000 won to the Agricultural Cooperative account in the name of KimD’s name (904-004-2019-600, 20000, 2000, 2000 or 00,000 won was remitted from each of the above accounts in the name of KimD’s name).

2. The plaintiff's assertion

A. The Plaintiff has a tax claim of KRW 314,283,670, total of the additional charges and increased additional charges incurred by ParkB by November 30, 201, when the said capital gains tax was paid by ParkB to ParkB by November 30, 201, and KRW 284,322,490, and ParkB, which was incurred by the transfer of the JB’s real property. Such a tax claim can be a preserved claim of the obligee’s right of revocation in light of the circumstances surrounding the occurrence.

B. Since the instant funds owned by ParkB were directly paid to the Defendant or were transferred to the account of KimD, the seller of the real estate in KRdong, and were used in paying the purchase price of the Defendant’s KRdong real estate, it would be deemed that the instant funds were donated under the donation agreement between ParkB and the Defendant. However, during the period of the opening, it can be deemed that the instant funds were made in sequence for the same purpose as repayment of the purchase fund of KRdong real estate during the period of the opening, and thus, whether the said donations constitute a fraudulent act ought to be determined collectively.

C. At the time ParkB’s donation of the instant funds to the Defendant, the active property of ParkB was KRW 253,887,450 deposited in the CCC Village Depository account (904-0019-2560-0), and KRW 193,068,570 deposited in the PFF’s account (72102-56-04297), and KRW 453,171,300 (253,87,450 + KRW 193,068,570 + KRW 6,280) deposited in the PFF’s account (7210-56-4253,171,300) and KRW 301,271,2714,251,2714,271,301, 3014, 251,270,301, 301,251,271,25,27,3014,2,27,301,

D. Since ParkB’s donation of KRW 400,00,000 of the funds of this case among the above deposits to the Defendant, and his passive property exceeds his positive property, the above donation of ParkB’s above act of donation is prejudicial to the creditors of ParkB such as the plaintiff, etc., and ParkB was aware of the circumstances that the above donation of this case would harm creditors such as the plaintiff, etc. as an obligor. Thus, the donation of the funds of this case constitutes a fraudulent act against the plaintiff. On the other hand, the defendant who is the beneficiary is presumed to have been malicious for the above fraudulent act.

E. Therefore, the Plaintiff revoked a fraudulent act within the scope of KRW 346,828,70 ( KRW 400,000-53,171,300 = 346,828,700 ( KRW 400,000-53,171,300 + 346,828,700) after deducting deposit KRW 53,171,300, which is active property remaining in ParkB after the above gift contract was concluded between ParkB and the Defendant, and further claimed that the Defendant, who is the beneficiary of the said fraudulent act, pay the amount of KRW 346,828,70 as compensation for the value arising from the revocation of the fraudulent act and the delay damages.

3. Determination on the cause of the claim

A. A loan agreement of this case between ParkB and the defendant

According to the facts acknowledged under paragraph (1), ParkB made it used for the payment of the purchase price of the KRdong real estate purchased by the Defendant either directly or to the Defendant by dividing 50 million won between July 9, 201 and July 20, 201, 400,000 won, 50,000,000,000 won, and 150,000,000,000 won, among his own deposits kept in the CCC Village Community Fund and the Agricultural Cooperatives, etc., from July 9, 201 to July 20, 200. In light of the following circumstances, ParkB and the Defendant, as their husband and wife, concluded a contract on the donation of this case between the Defendant and the Defendant, and concluded the contract on the donation of this case.

(b) Right of revocation: A preserved claim;

1) In principle, a claim that can be protected by the obligee’s right of revocation needs to be, in principle, arising prior to the commission of an act that can be seen as a fraudulent act. However, there is a high probability that there has already been a legal relationship that serves as the basis for the establishment of the claim at the time of the fraudulent act, and that the claim has been established 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 of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 201

2) According to the facts acknowledged earlier, although ParkB’s transfer income tax claim against the Plaintiff’s ParkB did not have yet occurred around July 201, 201 when the ParkB donated the instant funds to the Defendant, it was concluded on May 16, 201 between ParkB and CCC Village Community Fund, and the Plaintiff’s sale and purchase contract on the instant real estate was concluded on May 16, 201, and the legal relationship, which served as the basis for imposing capital gains tax on the Plaintiff’s ParkB, was already established. ParkB made a voluntary report on the transfer income tax on August 31, 201, which was about one month after the date when the Plaintiff paid the instant funds, on August 31, 2011, and was highly probable that the Plaintiff’s claim against ParkB was established based on the said legal relationship in the near future, and thereafter, the Plaintiff’s claim against ParkB was issued capital gains tax on November 10, 2011, thereby establishing a right of revocation.

(c) Whether it exceeds the debt of ParkB;

1) Criteria and methods for determining whether the debts exceed the debts

In order for a debtor to become a fraudulent act, the act of disposal of the debtor's property shall cause a decrease in the debtor's whole property and thus, the debtor's small property shall be more than active property, and the debtor's insolvency shall be determined as at the time of the fraudulent act. If the debtor's property owned by the debtor is provided as a physical collateral for another creditor's claim, the part provided as a physical collateral cannot be deemed as the debtor's liability property for the general creditor, and thus, only the balance obtained by deducting the amount of the secured claim held by other creditors from the value of the property provided as a physical collateral shall be assessed as the debtor's active property (see, e.g., Supreme Court Decisions 2009Da47852, Oct. 29, 2009; 2010Da64792, Jan. 12, 2012).

In determining whether a debtor's insolvency, which is the requirement to exercise the creditor's right of revocation, a small property subject to it, in principle, needs to be deemed to have arisen prior to the commission of an act that can be deemed a fraudulent act. However, at the time of such fraudulent act, there exists a legal relationship that has already been based on the establishment of an obligation, and there is a high probability as to the fact that the obligation is established in the near future, based on such legal relationship. In the near future, where such probability is realized and the obligation is established, the obligation should also be included in the debtor's small property (see, e.g., Supreme Court Decision 2010Da68084, Jan.

(ii) active property of ParkB;

가) 갑 제5, 6, 7, 10, 14, 15, 16, 24호증의 각 기재와 변론 전체의 취지를 종합하면, 박BB와 피고 사이에 이 사건 자금에 관한 증여계약이 체결된 2011. 7. 무렵 박BB는 ① CCC마을금고 계좌(9004-XXX-XX-X)의 예금채권 253,887,450원, ② CCC마을금고 계좌(9100-XXX-XX-X)의 예금채권 600,000,000원, ③ 농협 계좌(721012-XX-XXX)의 예금채권 193,068,570원, ④ '30나XXXX' 그랜저 차량 1대18,274,630원(가액에 대하여는 갑 제25호증 참조) 상당이 있었던 사실이 인정되는바, 위 인정사실에 의하면, 당시 박BB의 적극재산 합계는 1,065,230,650원(253,887,450원+600,000,000원+193,068,570원+18,274,630원=1,065,230,650원)이다.

B) On this issue, the Plaintiff asserted that: (a) the deposit claim of KRW 600,00,000 in the above CCC Village Fund account (910-L-L-L) is set up, and it is difficult to view that a pledgee, etc. may easily receive reimbursement due to the continuous increase in the secured debt; and (b) it is unreasonable to include ParkB’s active property.

However, even if a pledge is established on the above deposit claim as a right holder of the CCC Village Fund, it is reasonable to view that the debtor of the deposit claim belongs to the "claim which can be paid with due repayment" in light of the fact that the debtor is a financial company, and there is no assertion or proof as to special circumstances that the debtor's repayment of the above deposit claim is uncertain in the debtor's financial situation, etc. (However, as seen later, in order to properly assess the value of the above deposit claim, the amount equivalent to the actual secured debt amount secured by the above deposit claim at the time of the donation of this case must be included in the bB's negative property). Furthermore, since the bB was unable to receive the above real estate from the lessee until January 3, 2012, which was scheduled due to the due date, due to the legal expenses for delivery of the above real estate, delay damages, etc., the increased debt should not be considered in determining whether the debtor's repayment of the above deposit claim was actually secured by the bB's act of donation of this case (negative).

3) Petty property of ParkB

A) Tax liabilities against the Plaintiff

① According to the above facts, although the Plaintiff’s claim for capital gains tax of KRW 266,174,259 (reduction capital gains tax) against ParkB was not accrued prior to the conclusion of the instant gift contract between ParkB and the Defendant, it shall be deemed that ParkB’s claim for capital gains tax of KRW 266,174,259 (reduction capital gains tax) was established at the time of the conclusion of the instant gift contract, it is highly probable that ParkB’s legal relationship had already been established at the time of the conclusion of the said gift contract, and that its obligation would have been established in the near future, and it is actually established as a debt

② Meanwhile, comprehensively taking account of the respective descriptions of evidence Nos. 4, 13, and 18 and the overall purport of the pleadings, ParkB, in addition to the above capital gains tax amounting to KRW 266,174,259, around July 201 upon which the instant monetary donation contract was concluded, he/she additionally bears 61,910, which is the due date until March 31, 2011.

③ The Plaintiff asserts that the Plaintiff’s claim for capital gains tax against ParkB was KRW 371,522,410, including additional dues and aggravated additional dues. However, the obligor’s insolvency should be determined at the time of the obligor’s act of disposal of the property. However, even according to the Plaintiff’s assertion itself, the Plaintiff’s aforementioned additional dues, increased additional dues, KRW 105,348,151 ( KRW 371,52,410-26, 410-26, 174, 259 = 105,348,151) was an obligation that occurred only after the conclusion of the instant gift contract (as of November 30, 201), and thus, it cannot be included in the Plaintiff’s small property after the instant donation contract was concluded, and there is no probability that the Plaintiff’s obligation was established in the near future and existing legal relations.

B) Debts related to lease deposit;

According to the reasoning of evidence evidence No. 15 and No. 16, and the purport of evidence No. 15 and No. 16, JB1, it can be acknowledged that the above real estate was leased by 35,00,000 won for the above real estate owned by JB. On the other hand, ParkB agreed on May 16, 201 that ParkB would be responsible for the delivery of the JB real estate lessee at 0,000, and that CCC’s 10,000,000 won for the above 60,000,000 won for the above 0,000,000 won for 60,000,000 won for 30,000,000,000 won for 20,000,000 won for 30,000,000,00 won for 30,00,000,00 won for 30,00,00.

(c)any obligation established on a franchise vehicle;

According to the purport of Gap evidence Nos. 24 through 27 and the whole pleadings, ParkB was liable for the amount of KRW 10,00,000,00 with respect to the franchise vehicle owned by ParkB as a collateral security, KRW 391,180, and KRW 12,059,350 ( KRW 10,000 + KRW 391,180 + KRW 180,000 + KRW 1,68,170 + KRW 12,50,000,000 + KRW 1,668,170 + KRW 12,059,350.

4) Whether the debt exceeds the debt

According to the above facts, ParkB’s active property is KRW 1,065,230,650 at the time of entering into the instant donation contract with the Defendant, and his passive property is KRW 63,845,519 ( KRW 266,174,259 + KRW 355,00,000 + KRW 611,910 + + KRW 12,059,350 + KRW 633,845,519). Furthermore, it is difficult to find that his active property of ParkB exceeded 665,230,650 ( KRW 1,065,230,650-40,000 +65,630,630,6305,630,650,6305,65,6305,630). Therefore, it is difficult to find that his active property of ParkB exceeded 31,5315,6315,6315,65,6365,315

4. Conclusion

Therefore, the part of the plaintiff's claim in this case before expanding the purport of the claim in the trial shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed. The plaintiff's claim extended in the trial of first instance shall be dismissed as it is without merit