Revocation of Fraudulent Act

Since it is reasonable to deem that the Plaintiff’s disposition of imposing tax is null and void only because the defect is serious and objectively apparent, the Plaintiff’s claim of this case based on the instant taxation claim is without merit.

2015 Gohap52985 Revocation of Fraudulent Act

Korea

200,000

May 27, 2016

July 5, 2016

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. Each gift agreement entered into on August 4, 2010 with respect to the real estate listed in the separate sheet between the Defendants and thisA shall be revoked within the limit of KRW 1,007,759,929.

2. Defendant BB, thisCC shall pay to the Plaintiff 447,893,301 won, Defendant DDR 111,973,325 won, and 5% interest per annum from the day following the day this decision became final and conclusive to the day of complete payment.

1. Facts of recognition;

A. Conclusion of the gift contract of this case

1) The former representative director of ○ Design Co., Ltd. (hereinafter referred to as ○ Design, hereinafter referred to as '○ Design', hereinafter referred to as 'Co., Ltd.') was the representative director of ○ Design Co., Ltd. (hereinafter referred to as '○ Design', hereinafter referred to as 'Co., Ltd.') who retired from office on January 6, 2010 after transferring the shares he/she owned to ○○○○○.

2) On August 4, 2010, thisA donated real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) on August 4, 2010 to Defendant ECC, Defendant BB, and son, who is his or her father (hereinafter referred to as “instant gift agreement”).

B. The Plaintiff’s imposition of tax on EA

A public official in charge of the ○○○ Regional Tax Office affiliated with the Plaintiff was accused of ○○○○○○○, ○○, and ○○○○○○ on the data, and the investigation was conducted on or around August 2013. As a result of the tax investigation, the head of the ○○ Tax Office confirmed the suspicion that the ○○ Design received false tax invoices from ○○○,○, and ○○○ from 2008 to 2010 without supplying goods or services, and imposed and notified the global income tax and the value-added tax due to the secondary tax liability on the ○○ Design, which was recognized as the ○○ Design representative at the time of 208 and 209 (hereinafter referred to as “instant tax imposition disposition”, and the claim referred to as “instant tax claim”).

Items of Taxation

Reversion

Date of Notification

Date of establishment of tax liability;

Amount paid at a higher price

Global Income Tax

208

September 1, 2013

December 31, 2008

15,061,050

Value-added Tax

2, 2008

December 1, 2013

December 31, 2008

30,233,700

Value-added Tax

1, 2009

December 1, 2013

June 30, 2009

8,444,350

Global Income Tax

208

March 12, 2014

December 31, 2008

114,922,270

Global Income Tax

209

February 16, 2015

December 31, 2009

1,159,300,860

1,408,032,230

C. Progress of related litigation

1) The credit director, the creditor of the ○ Design and thisA, filed a lawsuit seeking reimbursement against thisA, and the Defendants filed a lawsuit seeking the cancellation of the instant gift contract and the cancellation of the transfer of ownership on the ground of fraudulent act (Seoul Central District Court 201Gahap37570), and the judgment was rendered in favor of the credit director on February 17, 2012. This case and the Defendants appealed against the said judgment.

2) Upon receipt of the payment of KRW 632 million, ○○○ agreed with the Defendants and the Defendants not to take any legal measures on the instant real estate. Accordingly, on March 28, 2012, ○○ paid KRW 632 million to ○○○○○○ on the part of March 28, 2012. Accordingly, ○○ withdrawn the Defendant’s lawsuit on April 23, 2012, and ○○ withdrawn the appeal on April 30, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, 12, 18 (including provisional numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2 and 8, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The Plaintiff is a creditor of thisA, who holds the instant taxation claim, and the instant donation contract constitutes a fraudulent act detrimental to the obligee, and thus should be revoked, and the remainder after deducting the amount already recovered from the value of the instant real estate as the restitution should be returned at the value.

3. Determination as to the defendants' defense prior to the merits

The Defendants asserted that “○○○ Regional Tax Office under the Plaintiff-based (○○○○○ Tax Office) conducted a tax investigation on the customer of ○ Design (○○,○, and○○○○○○○) and then accused the business partner-related persons as suspected of violating the Punishment of Tax Evaders Act. As such, it is reasonable to deem that this case’s real estate was donated to the Defendants at least during this period. Accordingly, the instant lawsuit was filed on May 2, 2015 when one year elapsed from the date of exclusion.”

In the exercise of the right of revocation, the "date when the obligee becomes aware of the cause for revocation" means the date when the obligor becomes aware of the fact that the obligor had committed a fraudulent act while being aware that it would prejudice the obligee, and this requires that the obligor merely aware of the fact that the obligor conducted a disposal of the property is insufficient to know the existence of a specific fraudulent act, and that the obligor was aware of the intent to deceive the obligor (see, e.g., Supreme Court Decision 2000Da3262, Sept. 29, 2000). Meanwhile, the burden of proof as to the lapse of the exclusion period lies in the party to the creditor revocation lawsuit (see, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009).

In light of the above legal principles, the fact that the tax investigation was conducted with respect to ○○○ on or around August 2013 was conducted as seen earlier. According to the evidence Nos. 8, 9, and 10, the tax investigation was conducted on or around 2012 with respect to ○○○, ○○, and ○○, which are the transaction partners of ○○○○○, but the following circumstances were revealed by the evidence Nos. 7, 13, and 14, namely, electronic data of the delinquent taxpayer’s property known of the transfer of ownership of the instant real estate was printed out on or around March 19, 2015, and accordingly, on or around March 20, 2015, by a public official affiliated with Mari-do, who was in charge of requesting a follow-up investigation on or around March 20, 2015, the evidence submitted by the Defendants alone did not have any other evidence to acknowledge that the Plaintiff’s gift or the instant real estate was insufficient.

4. Judgment on the merits

First, we examine whether the taxation claim of this case is established or not.

A. Relevant legal principles

statement made by a person who is not a taxpayer in the course of investigation by an investigative agency or tax authority;

Re-written statements, etc. are merely a unilateral statement made by a person who is not liable for duty payment if there is evidence consistent with the statement or there is no supplementary investigation of confirmation of the fact about the person liable for duty payment, etc. (see, e.g., Supreme Court Decision 2009Du5022, Jul. 9, 2009). Barring any special circumstances, barring any other special circumstance, the re-written statements, etc. cannot be deemed as taxation data on the person liable for duty payment unless there is a clear statement in a written confirmation submitted by the person who is the person liable for duty payment to the extent that the value of evidence cannot be easily denied because there is no specific content of the sales fact in the written confirmation submitted by the person who is the person liable for duty payment, even if it is a written confirmation of the person liable for duty payment, it does not constitute other data substituting the books or documentary evidence that

In cases where a tax authority imposed a tax by misunderstanding the factual basis, if it is evident that the taxation data, which was the basis of misunderstanding the factual basis, lacks the appearance of the taxation data, or is objectively unable to recognize the establishment or the authenticity of the content thereof, the taxation by admitting the taxable income on the sole basis of such taxation data, is serious, and its defect is objectively apparent and invalid (see, e.g., Supreme Court Decision 84Nu250, Nov. 12, 1985).

B. Determination

According to Gap evidence Nos. 8, 9, 10, and 11, E, an operator of ○○ and ○○○, after undergoing an investigation by the ○○ Regional Tax Office on February 14, 2012, E, ○○ issued a processed tax invoice of KRW 1,173,00,000 to ○○ Design, and ○○ stated that ○○ issued a processed tax invoice of KRW 636,80,000 to ○○ Design; the confirmation written by the ○○ representative director on March 2012, 209, which entered that the ○○○○○’s sales of ○○ Design was related to the disposition of value-added tax on March 20, 209 (which was related to the disposition of KRW 1,170,000,000,000, which was not related to the disposition of KRW 256,000,000, which was written by the ○○○ Tax Office.

On the other hand, the following facts can be acknowledged according to the overall purport of the statements and arguments in the evidence Nos. 3, 4, 5, 6, 11.

1) While operating ○○○ and ○○○, EE filed a charge of violating the Punishment of Tax Evaders Act (○○ District Prosecutors’ Office ○○○○○○○○○○○○○○○○○○○○○○), the Prosecutor stated that E should only collect taxes without filing an accusation as a violation of the Punishment of Tax Evaders Act, and that E should only collect taxes at the time of investigating ○○○ regional tax office’s investigation. However, while recognizing the issuance of false tax invoices for ○○○○○○, E submitted data related to real transactions by stating that the rest of the business is without having issued false tax invoices and all of them are through real transactions. Ultimately, a summary order was requested on September 20, 2012 with respect to the part of E, including the design of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and that there was no final decision on the remainder of the ○○○○○○○ on the same day.

2) From 2008 to 2010, EF and EA filed a charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery of False Tax Invoice) (hereinafter “○○○ Prosecutors’ Office”). During the prosecutor’s investigation, EF submitted a tax invoice of KRW 256,00,000 between ○○ Design and ○○○○○○○ on March 20, 209 with respect to transactions between ○○○○○○○ Design and ○○○○○○○○○○○ that recognized the receipt of excessive tax invoices as well as relevant materials related to the real transactions, on the grounds that the tax invoice of KRW 256,00,000 on March 20, 209 was a real transaction, and that ○○○○○ Automobile Research Institute’s storage vehicle storage, and that ○○○○ Design and ○○○○ on October 28, 2008 were not subject to any submission of the above processed materials and relevant materials.

In light of the above legal principles, insofar as there is no evidence supporting the contents of each written confirmation of EE, EE’s ○○, and EF, it cannot be deemed that the act of receiving tax invoices between ○ Design and ○○, ○○, ○○, and ○○○○, based on the written confirmation alone is false. Therefore, it is reasonable to deem the instant tax imposition disposition based on the written confirmation as above is serious, and it is objectively apparent and invalid. Thus, it cannot be deemed that the instant tax claim was effective, and therefore, the instant claim based on the Plaintiff’s creditor based on the instant tax claim cannot be seen as valid. Thus, the instant claim based on the premise that the Plaintiff is the Plaintiff’s creditor based on the instant tax claim is without merit.

5. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.