The second taxpayer's selling real estate to his/her child before the notice of designation of the taxpayer constitutes a fraudulent act.

The act of the secondary taxpayer prior to the designation of the secondary tax obligor for the major shareholder after the establishment of the corporate tax and value-added tax on the original taxpayer constitutes a fraudulent act.

Article 30 of the National Tax Collection Act

2013Du20157 Revocation of Fraudulent Act

Korea

The AA

December 11, 2013

January 15, 2014

1. The sales contract concluded on August 24, 201 with respect to the real estate listed in the separate sheet between the defendant and HaB shall be revoked within the scope of OB.

2. The defendant shall pay to the plaintiff OOO and the plaintiff 5% interest per annum from the day following the day this judgment became final and conclusive 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;

(a) A taxation claim;

(1) On October 25, 2011,CC Development Co., Ltd. (hereinafter “CC Development”) made a preliminary return of value-added tax (from July 1, 2011 to December 31, 2011 during the preliminary return period, from July 1, 2011 to September 30, 201) but failed to pay the value-added tax reported by October 25, 201, on the grounds that the Plaintiff’s official tax secretary was not paid on December 6, 2011, on the ground that it did not make a preliminary return on December 25, 201, the amount of value-added tax was determined as an O-value-added tax under the Plaintiff’s control, and the amount was corrected until December 21, 2011 to be paid by the date of the preliminary return.

(2) On December 28, 201,CC Development applied for the postponement of collection on the grounds that the remaining OOO members of the above revised tax amount constituted a serious business crisis as stipulated in Article 15(1)3 of the National Tax Collection Act due to the reduction of construction orders and the difficulty in collecting construction payment claims. The Plaintiff accepted it and extended the payment period. On April 24, 2012,CC development again was deferred as above due to a serious business crisis as seen above, on the ground that it transferred management rights to SOB to SOD due to the above serious business crisis, but thereafter, it was deferred by the collection period until July 31, 2012, and the remaining OOO members filed an application for postponement of collection by the Plaintiff on August 31, 2012.

(3) On May 11, 2012,CC Development did not pay the remainder of the OOOOO by the deferred payment period, while it did not pay the OOOO on June 13, 2012.

(4) On December 17, 2012, the Plaintiff: (a) at the time of the foregoing preliminary return, the oligopolistic shareholder was designated as the secondary taxpayer; and (b) around December 20, 2012, the Plaintiff notified that “OB, among the value-added taxes unpaid, bears secondary tax liability until January 6, 2013; (c) the Plaintiff did not pay the same; (d) the amount in arrears, including the surcharge, at the time of the filing of the instant preliminary return, is an OB.

(b) disposal by a Party B;

On August 24, 2011, JeongB entered into a sales contract with the Defendant, who is his father, to sell real estate listed in the separate sheet owned by JungB (hereinafter referred to as "the forest of this case") to OB (hereinafter referred to as "the sales contract of this case"), and the Defendant completed the registration of transfer of ownership with the Suwon District Court No. 49585, Sept. 8, 201 regarding the forest of this case as to the forest of this case.

(c)the state of excess of liabilities of the PartyB;

At the time of the instant purchase and sale contract, JeongB, even if excluded the Plaintiff from the tax liability, at least the amount of OE Livestock Industry Cooperative’s debt (the debt amount of the EEEE Livestock Industry Cooperative + the KRW KRW KRW OO on the guaranteed debt of the FF Bank + the KRW OO on the guaranteed debt of the Credit Guarantee Fund + the KRW 201GG 1 Securitization + the guaranteed debt of the HH Bank on the limited liability company specialized in the primary securitization of the 201GG 1 securitization + the KRW OO on the guaranteed debt of the HH bank). On the other hand, even according to the Defendant’s assertion that it is active property, it has a large amount of property equivalent to the KRW OO on the basis that it was in excess of the debt.

[Ground of Recognition] A without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 11 through 19, Eul evidence No. 1, Eul evidence Nos. 9, and 10, witness II testimony, part of this court's testimony, order of submission of each financial transaction information to the Director of the Tax Office of the District Court of this Court to the Director of the District Tax Office of the District Court of ? As a result of the order of submission of tax information to the Director of the District Tax Office of the District Court of ?, the purport of the whole pleadings as a whole.

2. Determination on this safety defense

The defendant asserts that the lawsuit of this case filed after the lapse of the exclusion period of one year thereafter is unlawful, since the plaintiff knew of the cause for revocation of fraudulent act within the period from September 8, 201 to September 3, 2011, which completed the registration of ownership transfer with respect to the forest of this case.

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the cause for revocation" means the date when the debtor becomes aware of the fact that he/she committed a fraudulent act while being aware that he/she would prejudice the creditor, which is not sufficient to say that the debtor merely knows the fact that he/she conducted a disposal of the property, and further, it is necessary to know the existence of a specific fraudulent act and to know the fact that the debtor had an intent to deceive the debtor (see Supreme Court Decision 2000Da3262, Sept. 29, 200).

The evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff was aware of the fact that the Plaintiff entered into the instant sales contract within the period between September 8, 201 and March 201, and that the joint collateral, which caused a shortage of joint collateral or had already been insufficient, became insufficient to fully satisfy the claim, and that the Plaintiff had been aware of the intent to harm the Plaintiff, and there is no other evidence to acknowledge it. Rather, in light of the fact that the Plaintiff was aware of the intent to harm the Plaintiff, there is no evidence to acknowledge it, and rather, there is no evidence to support the fact that the Plaintiff was aware of the fact that the Plaintiff had been aware of the intent to harm the Plaintiff, and as a result, in December 17, 2012, the Plaintiff was designated as the secondary taxpayer and the fixedB did not pay taxes, the Plaintiff was aware of the fact that the Plaintiff was investigating by doubting the instant sales contract as a fraudulent act during the process of selecting the fixed BB around January 2013, and the Plaintiff’s allegation in the instant lawsuit is without merit.

3. Judgment on the merits

(a)the existence of preserved claims;

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there has already been established a legal relationship that serves as the basis of establishment of the claim, and there is high probability that the claim would have been created in the near future. In the near future, where a claim is realized and its probability has arisen in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decisions 2004Da12004, Jul. 9, 2004; 2009Da81920, Sept. 29, 2011).

According to the above facts, although the secondary liability for tax payment of YB was not established at the time of the instant sales contract due to the lapse of the time limit for the principal liability for tax payment, it was highly probable that the taxation period of 2011 for CC development was already established, and NAB was an oligopolistic shareholder of CC development at the time of the instant sales contract. Accordingly, the legal relationship, which forms the basis for establishing the Plaintiff’s tax claim rights against PEB at the time of the instant sales contract, was created, and CC did not pay the value-added tax at the time until October 25, 2011, which was the due date for payment, until December 31, 2011. Since the revised value-added tax was not paid by the due date until December 31, 2011, it was highly probable that the above tax claim for PEB was established in the near future, and thus, it is probable that the Plaintiff’s tax claim was established only before the date of the instant sales contract’s tax claim commencement and payment.

B. Establishment of fraudulent act

(1) The above facts and evidence Nos. 7 and 9, No. 14-2, No. 8-2, and evidence No. 14-2, and witness II testimony as a whole. The following circumstances are as follows: ① The defendant, who had a domicile in Daejeon as of the time of the instant sales contract, purchased the forest land in Pyeongtaek-si as his father's house in the future (which was owned by OB) by 37.5% before and after the instant sales contract was concluded, it is difficult to conclude that OB had a significant increase in the sales price of the instant housing, and that OB was not issued by OB as of the date of the instant sales contract. Furthermore, it is difficult to conclude that OB had a significant increase in the sales price of the instant housing, and that OB was not issued by 37.5% of the total amount of the instant housing at the time of the instant sales contract, and that OB was not issued by OB as at the time of the instant sales contract.

(2) As to this, the Defendant alleged to the effect that he actually purchased the forest land of this case from JungB for the purpose of holding a house for a long time, and that he was unaware of the general creditor as a result of the instant sales contract, but in light of the circumstances examined earlier, in particular, in light of the relationship between the Defendant and JungB, the evidence submitted by the Defendant is insufficient to recognize that the Defendant was bona fide, and there is no other evidence to acknowledge it. Thus, the Defendant’s assertion is without merit.

(3) Sub-decisions

Therefore, the plaintiff can exercise the right of revocation against the defendant and seek restitution.

(c) Methods and scope of reinstatement;

(1) Method of restitution

In a case where a juristic act on 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 conducted on 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 a registration of creation of mortgage was cancelled by repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself would be an order to recover the portion that was not originally constituted a joint security of the general creditors, and would result in a violation of equity. Therefore, an order to reinstate the real estate itself is merely entitled to seek compensation for the value of the real estate within the extent of the balance obtained by deducting the secured debt amount of the mortgage (see, e.g., Supreme Court Decision 2001Da33734, Dec.

On April 25, 2005, the Suwon District Court: (a) received on April 25, 2005, No. 19932 as to the forest of this case at the time of the instant purchase and sale contract; (b) the Suwon District Court (OOOO of the maximum debt amount; (c) the debtor NN; and (d) the mortgagee-mortgage EE livestock industry cooperative was established; (c) on February 16, 2012, the fact that the mortgage establishment registration was cancelled on February 16, 2012 due to the repayment of the secured debt with the amount of OOO won at the time of the instant purchase and sale contract was either disputed between the parties, or can be acknowledged under the overall purport of the statement and oral argument as stated in the evidence No. 4. Thus, the instant purchase and sale contract should be cancelled within the scope of the balance obtained by deducting the secured debt amount of the said mortgage from the value

(2) Scope of revocation and equivalent compensation

Where part of a fraudulent act is revoked due to cancellation of mortgage, etc. and compensation for value is required, the revocation and compensation for value shall be limited to the amount of joint collateral held by the object of the fraudulent act, the amount of creditor's preserved claim, and the amount of profit acquired by the beneficiary, unless there are special circumstances.

The Plaintiff’s amount of preserved bonds is an OOO member, and the amount of the joint collateral value of the forest in this case is at least the amount of profit of the beneficiary is at least the amount of profit of the beneficiary (OOOO member of the officially announced amount of the forest in this case as at the time of the sales contract of this case - OO member of the actual amount of secured debt) is as seen earlier. As such, OO member of the amount of preserved bonds as the lowest amount is the limit of the revocation of fraudulent act and the scope of compensation for the equivalent amount.

(3) Sub-decisions

Therefore, the sales contract of this case is revoked within the limit of the OOO, and the defendant is obligated to pay to the plaintiff compensation for damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day following the day when the judgment becomes final and conclusive to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.