In a lawsuit seeking revocation of fraudulent act, the beneficiary's bad faith is presumed.

In light of the fact that the Defendant was a kys of the delinquent taxpayer, that the sales price of the transferred real estate is a large amount, and that the transfer income tax can be imposed, and that the delinquent taxpayer was in excess of his/her liability at the time of entering into the instant gift contract,

Article 24 of the National Tax Collection Act

2019 Ghana 102102 Revocation of Fraudulent Act

Korea

AA

November 2019

on October 30, 2019

1. The contract of donation on the real estate indicated in the attached Form No. 2 of March 2, 2017 between the defendant and BB shall be revoked.

2. The Defendant shall comply with BB with the procedure for registration of cancellation of ownership transfer registration completed on March 3, 2017 under receipt No. 10784 with respect to the registration of the Changwon District Court as to the real estate indicated in the separate sheet.

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

The same shall apply to the order.

1. Basic facts

A. BBB’s transfer of real estate entered into a sales contract with DBD on November 20, 2015 to sell a total of 4 lots of land including 00,00,000,000,000,000,000,000 and 1,230 square meters to LE, and entered into a sales contract to sell a total of 7 lots of land including 13,000 square meters to LE for 60,000,000 won, and received each purchase price from the above buyers on December 31, 2015, and completed each transfer of ownership for the above sale real estate (hereinafter “transferable real estate”).

(b) BB’s tax liability;

1) On February 29, 2016, BB calculated capital gains tax from the transfer of the instant transferred real estate as KRW 112,581,056, and filed a preliminary return of capital gains tax base, and paid the said capital gains tax amount.

2) The Director of the Changwon Tax Office found BB’s error in the portion of capital expenditure and the special deduction for long-term holding among the details of the preliminary return of capital gains tax base, and notified BB of July 1, 2017 that the remainder of KRW 180,878,134, which remains after deducting the already paid tax amount from the total of KRW 21,206,289, and KRW 293,685,391, which was the sum of KRW 293,685,39, and KRW 180,878,134, by July 31, 2017.

3) The arrears of BB in arrears are as listed below as of January 2019 (hereinafter referred to as “instant tax claim” or “instant tax obligation”).

(c) donations to the Defendant by BB;

1) The Defendant is the Ka of BBB.

2) On March 2, 2017, BB entered into a contract (hereinafter referred to as “the instant donation contract”) under which the Defendant donated the real estate indicated in the attachment (hereinafter referred to as “the instant real estate”) to the Defendant, and completed the registration of ownership transfer on March 3, 2017 with the Changwon District Court’s registration and 1000 with respect to the instant real estate (hereinafter referred to as “the instant registration of ownership transfer”).

D. At the time of entering into the instant gift contract, BB’s property possession status around March 201, which was around the time of entering into the instant gift contract, is as follows.

(i)affirmative property;

① The instant real estate

(2) Changwon-si 00, 000, 1000 (00 apartment)

2) Petty property

① The instant tax liability

② The secured debt (BB sold the said apartment at KRW 78,00,000 to CCC on May 24, 2017, and the said apartment was completed around March 2017, following the registration of the establishment of a mortgage, which was the maximum debt amount of KRW 60,000,000, around 00 in Changwon-si, 00,000 (0 apartment).

Facts without any dispute, Gap's 1 through 9, Eul's 1 (including each number), the purport of the whole pleadings, and the purport of the whole pleadings.

2. Existence of the preserved claim;

(a) Relevant legal principles;

1) In principle, a claim that may be protected by the obligee’s right of revocation needs to be deemed as a fraudulent act, but there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where a claim has been created by realizing the probability thereof in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012).

B. Determination on the instant case

Although the instant gift contract was concluded on March 2, 2017 before the determination of the instant tax claim, the obligation to pay capital gains tax on the transfer of the instant transferred real estate by BB is abstractly established on the last day of the month in which the amount constituting the tax base under Article 21(2)2 of the Framework Act on National Taxes accrues. As such, BB’s transfer of real estate was concluded after the lapse of December 31, 2015, which is the last day of December 2015.

In addition, there was a possibility that there was a change in the amount of capital gains tax scheduled for preliminary return due to errors in the details of return, from the preliminary return of capital gains tax base of BB until the transfer income tax becomes final and conclusive, and in fact, the head of Changwon Tax Office under the Plaintiff determined and notified the capital gains tax of KRW 180,878,134 to BB as the due date for payment on July 31, 2017, and the said

Meanwhile, the amount of the secured claim is included in the interest or delay damages incurred after the fraudulent act and the additional dues under Article 21 of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of interest on the unpaid portion in the event national tax is not paid by the due date. If national tax is not paid by the due date without the due date for payment, the amount is naturally determined pursuant to Article 21 of the same Act. Thus, inasmuch as 180,878,134 won, which is the initial notified tax amount, is recognized as the preserved claim of the obligee’s right of revocation, the amount of the secured claim shall also be included in the additional dues incurred after the fraudulent act and until the closing of arguments in fact-finding proceedings (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 207). In full view of the above circumstances, the Plaintiff’s taxation claim against BB in this case shall be the preserved claim of the fraudulent act revocation lawsuit.

3. The establishment of a fraudulent act;

A. Whether the debtor's debt exceeds the debt of BB

1) In order to constitute a fraudulent act, the debtor due to such act

In other words, the obligor’s small property should be more than active property (see, e.g., Supreme Court Decision 2002Da23857, Sept. 24, 2002). Whether the obligor’s insolvency in a lawsuit seeking revocation of a fraudulent act is determined as at the time of the fraudulent act (see, e.g., Supreme Court Decisions 2000Da69026, Apr. 27, 2001; 2009Da47852, Oct. 29, 2009). In addition, in determining whether the obligor’s debt exceeds the obligor’s obligation, there is a high probability of establishing a legal relationship which already serves as the basis of the establishment of obligation at the time of the fraudulent act, and where it is established in the near future based on such legal relationship, the obligor’s debt should also be included in the obligor’s property (see, e.g., Supreme Court Decision 2008Da6852, Oct. 29, 2009).

2) As examined in the aforementioned facts, as seen in the instant donation contract, BB’s active property at the time of the instant donation contract is KRW 00,000 and KRW 1000 (00 apartment units) with respect to the instant real property and KRW 00,000 at Changwon-si, and the small property is a secured debt of KRW 00,000, KRW 1000 (00 apartment units) with respect to the instant tax liability and KRW 00,000 at Changwon-si, and KRW 60,000 (0 apartment units) with respect to the instant tax liability and KRW 0,000 at Changwon-si, which exceeds the positive property. As such, BB is deemed to have exceeded the obligation at the time of the instant donation contract.

B. Whether the instant donation contract constitutes a fraudulent act

If a debtor donated his/her own property to another person in excess of his/her obligation, such act would constitute a fraudulent act (see, e.g., Supreme Court Decision 2006Da11494, May 11, 2006). BB could sufficiently anticipate that a large amount of transfer income tax would be imposed if he/she sells the transferred real property of this case in excess of the total amount of KRW 1.7 billion, and there is a possibility of changing the scheduled return tax amount prior to the scheduled return date of transfer income tax until the amount of transfer income tax becomes final and conclusive after the scheduled return date of transfer income tax base. In full view of the fact that BB was in excess of his/her obligation at the time of the donation contract of this case, and the defendant was a co-car of BB, the intention of harming is recognized

Therefore, the gift contract of this case constitutes a fraudulent act against the plaintiff, and the defendant's bad faith is presumed to be the beneficiary.

4. Judgment on the defendant's assertion

A. The defendant's assertion

Defendant and BB entered into the instant gift agreement on March 2, 2017, and the Plaintiff determined the amount of capital gains tax on BB as of July 1, 2017 and issued a notice of payment to BB thereafter. Thus, the Defendant did not anticipate that the instant tax liability against BB was incurred at the time of entering into the instant gift agreement.

Since the instant transferred real estate sold by BB to DB and LE was actually trusted out from DD, BB did not participate in the management of the purchase price and the payment of transfer income tax.

In addition, the instant real estate was owned by ABC, which is the father of BB, and the Defendant had completed the registration of ownership transfer under the Plaintiff’s name until the Defendant became adult among his family members, and if the Defendant becomes adult, an agreement was made by the Defendant at the time of completing the registration of ownership transfer in the future, and the registration of ownership transfer in the instant case was completed to the Defendant who became adult according to the above agreement between the

Therefore, the defendant did not intend to understand the plaintiff, and the contract of donation of this case does not constitute a fraudulent act.

(b) Relevant legal principles;

Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, the beneficiary is responsible to prove his/her good faith in order to be exempted from his/her responsibility. In such cases, the issue of good faith shall be determined reasonably in light of the logical and empirical rules, comprehensively taking into account the relationship between the debtor and the beneficiary, the details and the background or motive leading up to the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, whether there are no special circumstances to suspect the act of disposal, and whether there are objective materials to support the act of disposal as normal transaction, and circumstances after the act of disposal, etc. (see, e.g., Supreme Court Decision 2007Da7462

C. Determination on the instant case

There is no evidence to acknowledge the Defendant’s assertion that BB kept the instant real estate in custody under the status that BB received the instant transferred real estate from DD or that the instant real estate was to be donated to the Defendant.

In addition, the above circumstances alleged by the defendant and the evidence presented in the argument of this case alone are insufficient to reverse the presumption of bad faith as the beneficiary, and there is no other evidence to recognize the defendant as the beneficiary in good faith.

Rather, as seen earlier, it is reasonable to recognize the Defendant as a malicious beneficiary in light of the following: (a) the Defendant is a co-car of BB; (b) the sales price of the instant transferred real estate by BB reaches KRW 1.7 billion; and (c) the fact that BB was in excess of obligations at the time of the conclusion of the instant gift contract; and (d) the Defendant is a malicious beneficiary.

Therefore, the defendant's assertion is not accepted.

5. Revocation of fraudulent act and reinstatement;

Therefore, the gift contract of this case shall be revoked as it constitutes a fraudulent act, and the defendant shall be obligated to implement the procedure for cancellation registration of transfer of ownership of this case which was completed with respect to the real estate of this case to BB.

6. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.