Suwon District Court, Goyang Branch 2012 Single 503782 ( October 18, 2013)

The gift contract of this case is not recognized as a debtor's fraudulent act.

In light of the fact that the debtor was his residence at the time of the donation contract of this case and did not transfer the name of the right to lease on a deposit basis, which is the largest amount of the property, to the defendant, it is not recognized as the debtor's intention of deception

Article 83-2 of the National Tax Collection Act

2013Na51743 Revocation of Fraudulent Act

Korea

leAA

Suwon District Court Decision 2012dan503782 Decided July 18, 2013

March 13, 2014

April 3, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked. Each gift agreement entered into between the defendant and ParkB on April 25, 201 and 21.76/302 shares of 8/10 shares among the real estate listed in the attached Table 1 and 21.76/302 shares among the real estate listed in the attached Table 2 on April 25, 201 and each gift agreement entered into between 1/5 shares among the real estate listed in the attached Table 1 and 5.4/302 shares among the real estate listed in the attached Table 2 on December 9, 2011 shall be revoked. The defendant shall revoke to ParkB each gift agreement entered into between 8/10 shares among the real estate listed in the attached Table 1 and 8.76/302 shares among the real estate listed in the attached Table 2 with respect to 8/10 shares among the real estate listed in the attached Table 1 and the registration for transfer of ownership completed on April 26, 2016 by the competent court.

1. Basic facts

"The fact that ParkB entered into each contract of gift stated in the purport of the claim (hereinafter "each contract of gift of this case") with the defendant, whose wife is the defendant, and each registration of ownership transfer (hereinafter "each of the registration of ownership transfer of this case") as stated in the separate list 1 and 2 of the separate sheet No. 1 and the separate sheet No. 2 (hereinafter "each of the real estate of this case") with the defendant, and completed each of the registration of ownership transfer stated in the purport of the claim in the defendant's future, does not conflict between the parties." 2.

A. The parties' assertion

The Plaintiff asserts that ParkB’s donation of its shares among each of the instant real estate constitutes a fraudulent act, and sought revocation of each of the instant gift contracts and restitution of its original status as a creditor against ParkB.

"The defendant asserts that since the tax imposed on ParkB by the plaintiff after each of the instant gift contracts was imposed on ParkB by the resolution of revision of the global income tax, the above taxation claim (hereinafter "the instant taxation claim") cannot be the preserved claim for the revocation of the instant fraudulent act. Even if each of the instant gift contracts constitutes fraudulent act, ParkB or the defendant did not know that each of the instant gift contracts would prejudice the plaintiff as the tax claim."

The obligation to pay global income tax is naturally established under the law without any separate act of the tax authority or the taxpayer on December 31 of each year after the end of the taxable period, and where the government decides or decides the tax base and the amount of tax due to an error or omission in the details of the return, it is specifically fixed at the time of determining the tax base and the amount of tax. In addition, the obligation to pay additional tax is established when the liability to pay the national tax is established (see, e.g., the main sentence and Article 21(1)1 of the Framework Act on National Taxes, Articles 5(1) and 70 of the Income Tax Act, Articles 205Da10845, Feb. 22, 2007).

Meanwhile, although it is required that a claim that can be protected by the obligee's right of revocation was created prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that a claim has already been established at the time of such fraudulent act, and that a claim should be established in the near future due to its existing legal relationship, and where a claim has been created as a result of its realization in the near future, the claim may also be preserved for the obligee's right of revocation (see, e.g., Supreme Court Decisions 2000Da37821, Mar. 23, 2001; 2006Da66753, Jun. 29, 2007).

ParkB has reported and paid OB as global income tax for the year 2010, May 31, 201, and the Seoul regional tax office confirmed that ParkB had under-reported the global income tax for the year 2010 through a global income tax investigation on ParkB, a personal entrepreneur, from December 2011, and confirmed that ParkB had under-reported the global income tax for the year 2010, and notified ParkB on January 4, 2012, and the comprehensive income tax for the year 2010 belonging to ParkB had been adjusted from OB to OB as an under-reported won (including under-reported additional tax, OOOO, for-paid additional tax, and OOB on February 1, 2012) and obtained a resolution of correction from OB to OB as an additional tax, or that the remaining tax amount for the year 200,000,000 won could be deducted between the parties to the global income tax payment during the year 20,012.

In full view of the aforementioned facts and the legal principles as seen earlier, the portion of the taxation claim of this case, excluding additional tax, was legally constituted as of December 31, 2010, which was prior to the conclusion of each gift contract of this case, and the aforementioned disposition of imposition is nothing more than that specifically determined. Likewise, the portion of the additional tax in the taxation claim of this case was already established prior to the conclusion of each gift contract of this case, or at least the basic legal relationship was created, and it was highly probable that the additional tax portion among the taxation claims of this case was established through a series of procedures such as the investigation and correction of the comprehensive income tax against ParkB, and that the additional tax portion among the taxation claims of this case was established in the near future, as well as the possibility was realized in the near future.

Therefore, the taxation claim of this case is the preserved claim of obligee's right of revocation.

C. Establishment of fraudulent act

In full view of the above facts and the purport of evidence Nos. 4-1, 2, and 2 of the evidence Nos. 4-2, the active property of ParkB at the time of each gift contract of this case is a total of OB [OOwon of the real estate of this case + 27.2m2m2 of the real estate of this case + OOOOwon of the real estate of this case + 1743 OOO-dong 1743 COCC apartment of 1202, 803m2 of the OOO-dong 1203m2] and the small property is proved to be up to OOB as the amount of the preserved claim. Thus, since ParkB donated each of the real estate of this case to the defendant of this case, the gift contract of this case becomes a fraudulent act unless there are any special circumstances.

(d) The debtor's intention to cause harm;

In light of the following circumstances, each of the aforementioned facts and evidence Nos. 2 through 4, which can be known by comprehensively taking into account the overall purport of the pleadings, i.e., the investigation of global income tax on GabB from around December 201, when each of the instant gift contracts was concluded and implemented, and GaB started to conduct a tax investigation on the global income tax for GabBB, and GaB was one’s own residence at the time of each of the instant gift contracts, and did not transfer the title of the instant lease on a deposit basis, which is the largest amount of its property, to the Defendant; there is no evidence to acknowledge that GaB had any other obligation than the instant tax liability; ParkB commenced the Internet shopping mall business, which was the basis of the instant disposition on imposition of global income tax on December 31, 2009; it is difficult to conclude that the Plaintiff’s global income tax return, including the income accrued from the said business, was difficult to recognize the existence of any other evidence that the Plaintiff was unable to escape from the said individual’s business as the Plaintiff’s business.

E. Sub-decision

Ultimately, each gift contract of this case does not constitute a fraudulent act because it is not recognized as the debtor's intent to harm ParkB, which is the debtor, and thus, it cannot accept the plaintiff's assertion.

3. Conclusion

Therefore, the claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just as it is concluded, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.