The imposition of tax after the lapse of the exclusion period and five years from the fraudulent act is highly probable.

According to the existing practices, taxes on entertainment rooms have been paid, the exclusion period (5 years) of imposition has elapsed, and dispositions imposed five years after the fraudulent act is highly probable.

Article 30 of the National Tax Collection Act

2013 Gohap 46927 Revocation of Fraudulent Act

Korea

LAA

July 9, 2014

August 20, 2014

1. Of the instant lawsuit, the part of the claim for revocation as to KRW 00,000,00 among the gift contracts listed in paragraph (1) of the attached Table 1 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The contract of each gift as set forth in [Attachment 1] through (7) entered into between Defendant LA and NewB shall be revoked. The Defendant shall pay to the Plaintiff 0 million won with 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

1. Basic facts

A. NewB paid money to the Defendant or remitted money to the Defendant’s bank account as follows:

B. During the period from April 15, 201 to April 8, 2013, the Plaintiff issued a tax imposition disposition as shown in attached Table 2 (hereinafter “instant tax imposition disposition”) to the newB.

Facts that there is no dispute over recognition, entry of Gap evidence 2, purport of whole pleading, and purport of whole pleading.

2. Judgment on the Defendant’s main defense

A. In the instant case where the Plaintiff sought the revocation of the Plaintiff’s payment of money to the Defendant as shown in the separate sheet No. 1, the Defendant asserts that the revocation of the Plaintiff’s payment of KRW 00,000,000, out of the payment indicated in the separate sheet No. 1 of the Plaintiff’s assertion, is unlawful on the ground that the exclusion period of five years expires.

B. Comprehensively taking account of the overall purport of the arguments in evidence Nos. 2 and 7, the Defendant received KRW 00,000,000,000 from the newCC and entertainment lease deposit on August 11, 2008 from the lessor, by means of direct remittance from the lessor, and the Defendant received KRW 00,000,000,000 from the newB and received KRW 000,000,000 in advance, and the above KRW 00,00,000,000 in total, and KRW 00,000 on August 25, 2008, it is clear that the Plaintiff filed a lawsuit for the revocation of the fraudulent act on August 23, 2013 with the lapse of five years thereafter.

B. Therefore, the part concerning the claim for revocation of KRW 000,000,000 among the part concerning payment of KRW 00,000,000 as stated in the [Attachment 1] List 1 of the instant lawsuit is inappropriate as it exceeds the exclusion period of five years. As such, the Defendant’s defense prior to this part of the instant lawsuit is with merit.

4. Judgment on the merits

A. The plaintiff's assertion

(1) The Plaintiff, as listed in the attached Table 2, shall impose 40% tax, including value-added tax, on a newB from April 15, 2011 to April 8, 2013, as shown in the attached Table 2, and the Plaintiff currently has a tax claim of KRW 00,000,000 (including additional tax) on a newB.

B. As seen above, a newB, even though it is aware that a tax liability has been established and that there has been a tax imposition disposition on it, donated to the Defendant the sum of KRW 0,000,000,000,000 in total over ten times from August 25, 2008 to March 14, 2011, as shown in the attached Table 1, to evade the said tax liability.

C. Since NewB was in insolvent at the time of the above donation, it is presumed that newB paid the above money to the Defendant is a fraudulent act against the Plaintiff, and the Defendant’s bad faith is also presumed.

D. Therefore, the Plaintiff’s revocation of each of the above gift contracts by the instant lawsuit, and the Plaintiff’s restitution to the Defendant, thereby seeking a refund of KRW 0,000,000,000.

(b) the existence of preserved claims;

(1) The establishment and amount of the instant taxation claim

As seen earlier, the Plaintiff’s disposition of imposing the instant tax on NewB is identical to that of the newlyB. Therefore, barring any special circumstance, the Plaintiff has a taxation claim of KRW 00,000,000,000 in total as shown in the separate sheet in attached Table 2.

(2) Judgment on the defendant's assertion

(A) The defendant asserts that each tax claim listed in [Attachment 2] Nos. 1 through 12, 22 through 25 exceeds the exclusion period of imposition of taxes for five years, and that each disposition of imposition of taxes is null and void.

1) The exclusion period for the imposition of national taxes is five years from the date when a taxpayer evades national taxes, receives a refund or deduction (10 years) by deceit or other unlawful act (7 years) or when a taxpayer fails to file a tax base return within the statutory due date of return (Article 26-2(1) of the Framework Act on National Taxes). Each global income tax listed in the separate sheet Nos. 1 through 12 and Nos. 22 through 25 listed in the separate sheet No. 2 attached hereto imposed by the Plaintiff on the newB is null and void, barring any special circumstance, since the exemption period for the imposition of national taxes is five years from the date when the liability for tax payment was established (from December 31, 2005 to December 31, 207) or from April 5, 2013 or from April 8, 2013.

2) On this issue, the Plaintiff imposed the value-added tax on the gift certificates, which were offered by the newB entertainment room at the time when the newB was operated. The newB attempted to evade taxes by fraudulent or other unlawful acts, such as operating the said entertainment room on the ground of the name-based branch office at the time and concealing the revenue, and even if not, the newB intentionally omitted the value-added tax return on the said gift certificates at the time, and thus, the respective tax claims in this part are subject to the exclusion period of 10 years or 7 years.

3) The legislative intent of Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007) is to extend the exclusion period for imposition of the pertinent national tax to 10 years, since it is difficult for the tax authority to find out that there is any illegal act such as making it difficult to detect the taxation requirements of the national tax or forging or withdrawing false facts, even though the exclusion period of the national tax imposition right is five years in principle for prompt determination of tax-related relations. Therefore, the exclusion period for imposition of the pertinent national tax is extended to 10 years, since it is difficult for the tax authority to find that there is a tax evasion report. Therefore, the "Fraud or other unlawful act" under Article 26-2(1)1 of the former Framework Act on National Taxes refers to a deceptive scheme or other active act that makes it impossible or difficult to impose and collect taxes, and it does not constitute a mere failure to report under the tax law or a false report without accompanying

In addition, even if income is obtained through a disguised name, if it is not related to the tax evasion, it does not constitute "Fraud or other unlawful act" under Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007). However, if it is added to active acts such as preparation of a false sales contract and false payment of the price, false return of capital gains tax, false registration and registration, and preparation and keeping of a false account book, it constitutes "Fraud or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes" (see Supreme Court Decision 2013Du7667, Dec. 12, 2013).

4) In light of the above legal principles, in full view of the overall purport of the arguments in evidence Nos. 3-1 and No. 8 of this case, newB, from around 2001, operated “CC entertainment room”, “FF entertainment room”, and “GGGG entertainment room” in Jung-gu, Jung-gu, Busan. In light of the above legal principles, newB can be recognized that it employed new HH, lowest II, and Kim J as the owner of the above entertainment, and paid taxes in its name.

However, under the following circumstances, Gap evidence 8-1, Eul evidence 10-1 and Eul evidence 10-1 and 2, which can be known by comprehensively taking account of the overall purport of arguments, i.e., the newB is entrusted to uf85K KK accounting corporation at the time of operating the above entertainment room, and all of the purchase data of merchandise coupons subject to value added tax 1 to 12 stated in the attached Table 2 are submitted to the above accounting corporation. ② The above accounting corporation calculated the amount of merchandise coupons received from newB under tax practice at the time of the tax practice less the total amount of merchandise coupons discharged from the total amount of merchandise coupons invested, and reported it to the National Tax Service. ③ The National Tax Service also calculated the tax amount except for the portion of merchandise coupon sales reported at the time of the taxation period for purchase and sales of merchandise coupons. ④ Even if the new BB office operated the above entertainment under the name of another person on the ground of its fraudulent name, the new tax office's imposition of value-added tax from 200 to 200.

5) Even if not, in principle, a claim that may be protected by the obligee’s right of revocation needs to be, in principle, constituted prior to the commission of a fraudulent act. However, there is a high probability that the legal relationship, which is the basis of the establishment of the claim, has already occurred at the time of the fraudulent act, and that the claim should be established in the near future. In the near future, the possibility of realizing the claim in the near future, the claim may also be a preserved claim. Here, “the probability” should not be limited to the extent that the claim or obligation can be established in the near future. At least, it is difficult to view that there is an objective circumstance to predict the obligor’s intent, and it is difficult to see that, in light of the fact that there is a high probability, the obligor’s act of disposal of the claim or obligation, the substance of the obligor’s property status and its change, the extent and frequency arising from the claim or obligation arising therefrom, and the Plaintiff’s act of disposal of the claim or obligation at intervals of 131 or 201 evidence, etc.

① The establishment date of the tax liability for this portion of the taxation claim was from December 31, 2004 to December 31, 2007. The Plaintiff’s disposition imposing tax on this portion was made between April 5, 2013 or April 8, 2013, and the period of exclusion (five years) for the tax imposition was far more than the period of exclusion (five years).

2. The newB paid the Defendant more than KRW 0 billion prior to five (5) years prior to the disposition of tax imposition on this part, and the newB does not seem to have paid the said money to the Defendant in advance, even after five (5) years thereafter.

③ The Busan regional tax office already imposed value-added tax on gift certificates of the above entertainment room on the maximum II and the New HH, etc., who are the nominal owner of the entertainment room operated by the newB, but withdrawn the said disposition on the ground that the above lowest II and the new HH had no capacity to pay the tax, and thereafter, the tax investigation conducted from November 5, 2009 to December 2, 2009 on the entertainment room in the above name of the new HH was conducted on the ground that there was no practical benefit to impose tax on the above entertainment room on the grounds that the revocation of the previous imposition was made.

④ From December 6, 2010 to January 21, 2011, Busan regional tax office conducted a tax investigation on the newB, and at the time of the investigation on the said tax investigation, the Busan regional tax office concluded the investigation on the said entertainment room by deeming that there was no suspicion of misrepresentation on the ground that the said entertainment room’s earnings were not verified as having accrued to the newB.

5. This part of the tax imposition disposition is a case in which the investigation is conducted and imposed by the information of the MF or the L, which was in conflict with the newB at the time of the initial tax imposition disposition, civil, criminal, household cases, etc.

④ At the time of 2008, when a newB paid approximately KRW 0 billion to the Defendant, the newB had obtained a lot of revenues through a speculative entertainment room along with various business entities, and had repeatedly conducted real estate transactions based on the import, and had increased the assets by repeating the real estate transactions (limited to the assets of the newB as of April 19, 2012, which was the date of closing of divorce proceedings between the newB and theL, as of April 19, 2012).

7) Upon the issue of the issue related to the speculative entertainment room, the Plaintiff conducted a tax investigation from the end of 2005 with the special control over the speculative entertainment room. During that process, the controversy over the legality of the imposition of the value-added tax on gift certificates offered as gift from the entertainment room has been pending. Therefore, it is difficult for a general public, who is not a legal expert, to expect the disposition of imposing taxes beyond the existing tax practice at the time.

6) Accordingly, each taxation claim in this part can not be considered as a preserved claim in the creditor revocation lawsuit in this case, even if any.

(B) In addition, the Defendant asserts that since the transfer income tax listed in the No. 28 and 29 in the table No. 29 stated in the table Nos. 28 and 29, the newB disposed of the real estate held in title to LL and took profits therefrom at will, it is unlawful or unjust to impose the transfer income tax on the said real estate on the newB, and even if it is not a household, the transfer income tax in the No. 29 listed in the table No. 29 stated in the table No. 29 stated in the table No. 28 of the previous sheet is calculated again because it is charged again with additional tax of KRW 00,000 included in the transfer income tax listed in the table No. 2

1) The plaintiff's documents alone are insufficient to recognize it, and there is no other evidence to acknowledge it (the plaintiff has filed a lawsuit against the head of the Changwon District Court Decision 000Guhap00000 against the head of the Changhae District Tax Office, but has lost the lawsuit, and the appeal is currently in progress (the Busan High Court Decision 000Nu00)).

2) However, there is no dispute between the parties that the Plaintiff cancelled the additional tax portion out of the transfer income tax set forth in the table Nos. 29 No. 28 and that the said tax claim No. 29 should be excluded from the Plaintiff’s preserved claim.

(C) Lastly, the defendant asserts that since each tax claim listed in the No. 30 to 40 listed in the table 2 attached hereto was recovered by the plaintiff through a compulsory auction after the institution of the lawsuit in this case, this part of each tax claim should be excluded from the plaintiff's preserved claim. Thus, since there is no dispute between the parties that the plaintiff collected all of this part of the tax claim during the lawsuit in this case, this part of the tax claim cannot be the plaintiff's preserved claim.

(3) Sub-determination

Therefore, the Plaintiff’s taxation claim eligible for the obligee’s right of revocation of this case is KRW 00,00,000 in total, 13 through 21, 26 through 28, listed in attached Table 2.

(c) the existence of fraudulent act and intent to commit suicide;

(1) The fact that newB paid a total of KRW 0,000,000 to the Defendant between August 25, 2008 and March 14, 2011, which was after the date of establishment of the tax liability listed in the separate sheet in attached Table 2, is as seen earlier.

[피고는 별지1 목록 제3항 내지 6항 기재의 각 돈은 주식회사 PPP 명의의 계좌에서 피고 명의의 계좌로 송금된 것이므로, 이는 신BB 개인이 피고에게 지급한 돈이 아니라고 주장하나, 갑 제2호증, 을 제8호증의 2 각 기재에 변론 전체의 취지를 종합하여 알 수 있는 다음의 각 사정들, 즉 ① 피고는 부산지방국세청이 실시한 신BB에 대한 체납추적조사에서 '위 각 금전거래는 피고가 신BB이 이LL와의 이혼소송, 이LL, 고MM과의 민・형사 소송에 필요한 소송비, 생활비, 자녀유학비 등을 개인적으로 차용해주고 그 돈을 변제받은 것'이라고 진술한 점, ② 주식회사 PPP은 실질적으로 신BB 1인 주주 회사였고, 신BB은 주식회사 PPP이 그 소유의 부산 부산진구 양정동 000-0 외 2필지를 QQQ종합건설 주식회사에게 매도한 후 지급받은 매매대금 중 일부를 임의로 자신 명의의 RRRR농협계좌로 입금하였다가 그 중 일부를 피고에게 송금(별지1 목록 제3항 기재 돈 중 00,000,000원의 송금 부분)하는 등 자신이 운영하는 회사의 자금과 개인의 금전거래를 구분하지 않았던 것으로 보이는 점 등에 비추어 보면, 이 부분 각 지급 부분 역시 신BB과 피고 사이의 금전거래라고 봄이 타당하므로, 이 부분 피고의 주장은 이유 없다.]

(2) Therefore, in full view of the following facts, the current status of the newB’s property at the time of providing the Defendant with the money as shown in the separate sheet No. 1, and the evidence No. 3-1, and No. 9-2 as to the status of the newB’s property at the time when the newB paid the money as indicated in the separate sheet No. 1, the current status of the newB’s property at the time may be recognized as follows (affirmative of each of the following items, and the claim of the original and the Defendant other than the small property is dismissed), and the newB had all active property to be paid to the Defendant simultaneously, as listed in

(3) In regard to this, the Plaintiff asserts that, among the active property of the newB, the amount of theCC building lease deposit is not deducted from overdue rent, etc., and the newB stated that there is an amount of KRW 0 billion retirement allowance liability for the entertainment room owner or employeeS, new HH and HanT that it had been operated in a divorce lawsuit with LL, the said amount of the retirement allowance liability should be assessed as the small property of the newB, but there is not any other evidence to acknowledge it. However, the Plaintiff’s statement in subparagraph 3-1 of the evidence is insufficient to acknowledge it, and there is no other evidence to acknowledge it.

Rather, in full view of the purport of the argument in Gap evidence 3-1, the newB's argument that the lease deposit was extinguished due to the deduction in the Busan Family Court 2009dhap0000 (principal lawsuit) and the 0000 (Counterclaim) divorce lawsuit between the newB and the LL, was rejected, and the newB claimed that the above lease deposit was assessed as active property of the newB, and that the newB had 0 billion won as retirement allowance liability for SS, new HH and Han T in the above lawsuit. However, the above court asserted that the newB had been assessed as active property of the newB on the ground that the said debt was false debt. Thus, the plaintiff's argument is without merit.

(4) Therefore, even though the amount paid by NewB to the Defendant, as shown in the separate sheet No. 1, as alleged by the Plaintiff, constitutes a gift, such payment does not constitute a fraudulent act against the Plaintiff unless the newB is in insolvent at the time.

5. Conclusion

Therefore, the part of the Plaintiff’s claim for revocation of KRW 00,000,000 among the part of the payment indicated in the separate sheet No. 1 of the Plaintiff’s lawsuit of this case is unlawful and dismissed, and the remainder of the Plaintiff’s claim is dismissed as it is without merit. It is so decided as per Disposition.