gift of property to the spouse in excess of liabilities and constitutes a fraudulent act

Since there is a rate of punishment, which is the basis of establishment of a tax claim at the time of donation by giving notice prior notice of taxation prior to the date of donation, and there is a near future taxation claim, the taxation claim becomes a preserved claim of creditor's right of revocation and the act of donation of property due to excess of debt constitutes a fraudulent act.

Article 30 of the National Tax Collection Act

2011 Revocation of fraudulent act

Korea

Song XX

July 24, 2012

August 14, 2012

1. The contract of donation concluded on April 29, 201 between the defendant and KimA shall be revoked.

2. As to the real estate stated in paragraph (1) to the Plaintiff, the Defendant shall implement the procedure for registration of cancellation of ownership transfer registration that was completed on April 29, 201 by the Busan District Court, Busan District Court, Busan District Court, and the receipt of the transfer of ownership registration

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

The same shall apply to the order.

1. Facts of recognition;

A. KimA, the representative director of XX, on December 14, 2010, deducted the withholding tax amount that was not paid by KimA, Inc. from the already paid tax amount, and filed a comprehensive income tax return for the year 2007-2009.

B. On March 15, 201, the head of Seosan Tax Department confirmed that KimA had unjustly deducted the tax amount already paid, and notified KimA of 000 won of the aggregate of the global income tax for June 1, 2007-2009 (hereinafter referred to as “instant tax decision”) on June 30, 201 after the pre-assessment review was conducted on March 15, 201, and notified on June 30, 201, the head of Seosan Tax Department determined that the said tax amount was paid by the said payment deadline. However, KimA did not pay the said tax by the said payment deadline.

다. 한편 김AA은 이 사건 과세예고통지가 있은 후인 2011. 4. 29. 처(姜)인 피고에게 자신의 유일한 재산인 별지 목록 기재 부동산(이하 '이 사건 부동산'이라 한다)을 증여하기로 하는 내용의 계약(이하 '이 사건 증여'라 한다)을 체결하고, 같은 날 피고에게 이 사건 증여를 원인으로 한 소유권이전등기를 마쳐 주었다.

D. The value of the instant real estate is less than the delinquent tax amount for the instant taxation decision.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 7 (including the branch number in the event of a natural disaster), Eul evidence No. 1, the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

According to the above facts, by giving notice of prior notice of taxation to KimA on March 15, 201, the head of Seogsan Tax Department has a high probability to the effect that at the time of the donation of this case, there has already been a legal relationship which serves as the basis for establishing a tax claim, and that tax claim should be established in the near future legal relationship, and tax claim should have been established as a result of reality around June 201 in the near future. Thus, the instant tax claim can be a preserved claim of obligee’s right of revocation (see, e.g., Supreme Court Decision 2006Da39560, Oct. 12, 2006). In addition, the act of donation of the instant real estate, which is the only property of the Defendant, to the Defendant who is one of his wife under excess of the obligation, constitutes a fraudulent act in relation to the Plaintiff, barring any special circumstances, and it is presumed that the intention of Kimhae and the Defendant’s bad faith, a beneficiary, is also presumed.

Therefore, the Plaintiff may revoke the instant donation as a fraudulent act and seek restitution to the Defendant.

B. Judgment on the defendant's defense

The defendant defenses to the effect that he did not know that the gift of this case was a fraudulent act at the time of the donation of this case. However, it is not sufficient to acknowledge only the evidence No. 1, and there is no other evidence to prove otherwise, the defendant's defense is without merit.

C. Sub-committee

Therefore, the gift of this case should be revoked as a fraudulent act, and the defendant is obligated to implement the procedure for cancellation registration of transfer of ownership to the plaintiff with respect to the real estate of this case as a result of restitution to its original state.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.