Act of a delinquent taxpayer to donate cash to the defendant constitutes a fraudulent act.

The act of making cash donation to the Defendant by a delinquent taxpayer constitutes a fraudulent act, and the Defendant did not know that the delinquent taxpayer was in excess of his/her obligation, or received the donation under the pretext of property division.

2016 Ghana 229113 Revocation of Fraudulent Act

Korea

Section AA

October 12, 2017

November 1, 2017

1. A contract of KRW 25 million entered into on June 16, 2016 between the defendant and the non-party BB (the date of September 5, 2016), a contract of KRW 100 million entered into on July 3, 2014, and a contract of KRW 174 million entered into on July 25, 2014, shall be revoked within the limit of KRW 153,465,687.

2. The defendant shall pay to the plaintiff 153,465,687 won and 5% interest per annum from the day following the day when this judgment is finalized to the day of complete payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

The following facts shall not be disputed between the parties, or may be acknowledged in the entries in Gap evidence 1 through 9, and Eul evidence 1 by integrating the whole purport of the pleadings:

(a) Circumstances leading to the imposition of capital gains tax on KoreaB;

(1) On July 2, 2013, Non-Party B, the Defendant’s spouse, entered into a sales contract to sell KRW 880,880,00 of the purchase price to Non-Party B, who owns ** also * 305-3 Do-dong 305-3 Do-dong Do-dong (hereinafter “Ddong land”).

(2) Korea Development Bank Account (*--) of FFF branch account in its own name of FFFFF branch account with the exception of the remaining purchase price of KRW 529,903,070 except for the collateral security loan 350,976,930 from EE agricultural cooperatives;

******* on July 2, 2013, 88,000 won on July 2, 2013, and KRW 88,088,000 on October 2, 101 of the same year, and KRW 353,727,070 on April 22, 2014, respectively, were remitted to the said company, and completed the registration of ownership transfer on Ddong land on April 22, 2014.

(3) On August 10, 2014, the director of the tax office of North Korea under his/her control imposed capital gains tax of KRW 163,721,878 on August 10, 2014 (i.e., KRW 161,684,652 + penalty tax of KRW 2,037,226) and local income tax of KRW 16,168,465 (i.e., KRW 161,684,652) and KRW 168,465 (i.e., KRW 161,684,652) on KRW 163,721,870, and thereafter notified B of the payment of capital gains tax of KRW 163,721,870 by August 31, 2014 (in addition, the amount without payment of capital gains tax of KRW 209,891,870).

B. The defendant's purchase process of the apartment of this case

(1) 피고는 2014. 6. 14. @@시 @@구 @@동 862 @@아파트 103동 1301호를 손GG로부터 매매대금 304,000,000원에 매수하기로 하는 매매계약을 체결하면서 계약금 3,000만 원은 계약시에, 중도금 1억 원은 2014. 7. 4.에, 잔금 1억 7,400만원은 2014. 7. 25.에 각 지급하기로 약정하였다.

(2) From the instant account to the seller’s name, the amount of KRW 25 million was transferred from June 16, 2014 to the seller’s account for the purchase price of the instant apartment, KRW 10 million on July 3, 2014, KRW 174 million on July 25, 201, respectively. The Defendant received the registration of ownership transfer on the instant apartment on July 25, 2014.

(c) the insolvency, etc. of KoreaB;

(1) The balance as of April 22, 2014, when the purchase price of the Ddong land in the instant account was fully deposited, was KRW 354,259,089, but was additionally deposited from July 25, 2014 to July 25, 2014, only KRW 290,000,000, in total, was remitted as the purchase price for the instant apartment, and only KRW 6,588,826, and only KRW 290,000,000,000 were remitted, from July 25, 2014.

(2) On June 2014, around July 1, 2014 of the same year, Han-B did not have any property other than 320,374,849 won and one automobile (standard market price amount, 4,079,690 won) and 2/17 of the 250-4m2 of the 250-4m27m2 of the 250-4m2 in Chungcheongnam-do, Chungcheongnam-do, ECE-do, ECE-si, 2/17 of the 250-18m27m2 of the 7m250-18m2 of the 37,718m2 (the officially announced land price) and EE-si, 250-12 of the 10m27m2 of the 10m2 of the 44m2 road (the officially announced land price).

(3) On March 10, 1971, the Defendant married with Korea-B on March 10, 1971, and was married to a marriage, and the agreement was reached on October 1, 2014. However, on August 8, 2014, the Defendant and Korea-B, after completing the move-in report on the resident registration of the instant apartment, was changed to the name of the Defendant himself/herself on the same day, and Korea-B was registered as a person living with the Defendant until now.

2. The establishment of a fraudulent act;

A. Formation of preserved claims

According to Article 21(2)2 of the Framework Act on National Taxes, liability for payment is abstract on the last day of the month (the month in which the date of the transfer of assets) in which the amount forming the tax base has occurred, and the time of transfer of assets is the date of liquidation of the price of the relevant assets. However, even if the Plaintiff’s tax claim against Korea-B was not created at the time of the instant donation contract, there was a high probability on the fact that the legal relationship between Korea-B and Korea-B, which is the basis of the occurrence of the claim that can be protected by the obligee’s right of revocation, was established by transferring D-B’s land on April 22, 2014, and the Plaintiff’s tax claim against B-B, based on such legal relationship in the near future, was established. In fact, the duty to pay capital gains tax becomes final and conclusive on April 30, 2014, and it was probable that the North Incheon Incheon National Tax Office notified transfer income tax to Korea-B around August 2014, establishing the claim subject to revocation.

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

(1) The term "legal act detrimental to the obligee" means a juristic act that causes a decrease in the obligor's assets due to the act of disposing of the obligor's assets, thereby making it impossible to fully satisfy the obligee's claims because of the decrease in the obligor's assets or the lack of joint collateral already in the situation of shortage. Thus, such fraudulent act may be established not only where the obligor has already been in excess of his/her obligations prior to disposing of assets, but also where the obligor has been placed in excess of his/her obligations due to an act in question such as donation of money, etc. (see, e.g., Supreme Court Decision 2005Da6808, Apr. 29, 2005).

(2) In general, in a case where an obligor has engaged in multiple continuous disposal of property, barring special circumstances where such an act ought to be considered as a single act, the determination of whether a series of acts ought to be made en bloc (see, e.g., Supreme Court Decision 2000Da69026, Apr. 27, 2001); whether the other party to the disposition is the same; and whether the motive or opportunity for each disposition is the same.

(3) According to the above facts, Korea-B made a donation of KRW 25 million, KRW 100,000,000,000 to the Defendant, the same other party, over three times on June 16, 2014 and July 3, 25 of the same month, to avoid the tax liability after the date of establishment of the tax liability, and such donation of KRW 17,40,000,000,000,000,000,000 won as the acquisition fund of the apartment of this case, and such donation of KRW 325,637,363 (= 320,374,374,849 + 4,690,000 + KRW 1,069,00 + KRW 37,718,7567,000 + KRW 647,000,000,000,000). However, Korea-B constitutes one act of gift of this case.

C. Defendant’s bona fide assertion

(1) The Defendant asserts that the Defendant had other property in KoreaB, and the Defendant and Korea-B claimed that the presumption of bad faith was destroyed since the Plaintiff did not know that Korea-B was not in a state of excess of the obligation, or that the instant money was received as property division.

(2) The obligor’s intentional intent, which is a subjective element of a fraudulent act, refers to recognizing that there is a shortage of claims as joint collateral, and it does not require any intent or intent to prejudice the obligee. In the event that a debtor’s donated obligation is included in a small property and thus his/her obligation is omitted, the obligor’s intent at the time of the act of donation is presumed at the time of the act of donation, and the beneficiary’s bad faith is presumed, and thus, the beneficiary has the burden of proof to the beneficiary that the beneficiary was unaware of the fraudulent act.

(3) In the instant case, the Defendant and Korea-B filed a report of divorce on October 10, 2015, as seen earlier; however, as seen earlier, the Defendant and Korea-B have been married on March 10, 1971 and maintained their marital life for at least 40 years, and the Korea-B still lives together with the Defendant as the resident registration (the Defendant was accompanied by B at all times on the date of the trial in the instant case) after the divorce, taking into account the circumstances such as the fact that the Defendant did not know that the Defendant was in excess of the debt status of Korea-B, or that it was donated the deposit under the pretext of property division. The Defendant’s assertion is without merit.

3. Conclusion

Therefore, within the scope of the amount of the Plaintiff’s preserved claim, the Defendant and the Nonparty HanB (the date of September 5, 201) are obligated to pay damages for delay at a rate of 5% per annum as stipulated in the Civil Act between the Defendant and the Nonparty HanB (the date of September 16, 2016), the agreement of KRW 25 million concluded on July 3, 2014, the agreement of KRW 174 million concluded on July 3, 2014, and the agreement of KRW 153,465,687, which was concluded on July 25, 2014, and the agreement of KRW 153,465,687, which was concluded on July 25, 2014, and the Defendant is obligated to pay to the Plaintiff damages for delay at a rate of KRW 153,465,687 and the date of full payment under the Civil Act, from the day following the date of final settlement.