Seoul Central District Court-2017-Ga-5245050 ( October 26, 2018)

Since a number of public officials of a tax office individually recognized only some elements of fraudulent act, it cannot be deemed that the reason for revocation was known. Thus, the exclusion period was not excessive.

Since the circumstance that multiple public officials of the tax office individually recognized only some elements of fraudulent act cannot be deemed to have known the reason for revocation, the exclusion period of one year from the date of becoming aware of fraudulent act does not exceed the limitation period, and the gift of this case constitutes fraudulent act.

Article 30 of the National Tax Collection Act / [Cancellation and Restoration to Original State] Article 406 of the Civil Act / [Revocation of Revocation]

Seoul Central District Court 2018Na54929 Revocation of Fraudulent Act

Korea

AA and 1

July 24, 2019

August 28, 2019

1. Revocation of a judgment of the first instance;

2. The Defendants and BB cancel a share transfer agreement concluded on December 10, 2012 with respect to each of the shares listed in the separate sheet with respect to each of the shares listed in the separate sheet.

3. The Defendants are informed to BB that each of the shares listed in the separate sheet was transferred to BB and that the said shares were transferred to limited partnership companies,CC***). 4. Total costs of the lawsuit are borne by the Defendants.

The same shall apply to the order.

1. Basic facts

A. BB did not pay capital gains tax of KRW 405,301,340, which was established on or around December 31, 2010, until December 31, 2012. Accordingly, additional tax of KRW 201,05,480, etc. (hereinafter “instant capital gains tax”). BBB invested 1,200,000 (1/2 of total amount of investment) in a limited partnership CCC (hereinafter “CC”) on July 8, 1987, and invested 1,200,000 (hereinafter “share”) in the separate list (hereinafter “instant share”) and transferred 1/20,000,000 to the Defendants, who were limited partners, as well as 1/120,000 (hereinafter “B”). BB transferred the shares in this case to the Defendants, who were limited partners, and thereafter, retired from the Defendants’ corporate register (hereinafter “CC”) on or around December 12, 2012.

D. Around March 26, 2013, the Defendants filed a tax base return on gift tax to the effect that “The Defendants received 600,000 won (value 79,887,600) from CCC’s investment from BB on December 17, 2012.”

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 7-1 and 7-2, and the purport of the whole pleadings;

A. Summary of the defendants' assertion

Since the instant gift was actually made around December 4, 2012 or around November 2012, the period of exclusion has expired, and the instant lawsuit filed for more than five years thereafter is unlawful. Furthermore, the Plaintiff-affiliated Diplomatic Secretary, etc. took measures to preserve claims against BB, such as tracking the property of BB to preserve a claim against BB, which was in arrears at the time of the instant gift and thereafter, and taking measures to preserve a claim against BB, and during that process, he was aware that the instant gift constitutes a fraudulent act. Accordingly, the instant lawsuit filed for more than one year thereafter was unlawful as the exclusion period expires.

B. Determination

1) Determination on the exclusion period of five years and defenses

When a juristic act constituting a fraudulent act was committed, the date on which such fraudulent act was actually committed must be determined as the standard. However, in cases where it is difficult to determine it, it shall be determined whether such fraudulent act was actually committed on the basis of the date, etc. of registration on the register that appears based on the disposition document (see, e.g., Supreme Court Decision 2007Da28819, 2826, Feb. 25, 2010).

As to the instant case, the Defendants testified to the effect that the Plaintiff was registered as the Plaintiff on December 10, 2012 in the CCC’s corporate registry, and that the Defendants filed a gift tax base return on December 17, 2012, as seen earlier, and that the Defendants had received the instant gift on December 17, 2012. The aforementioned evidence and the following circumstances, which can be acknowledged by comprehensively considering the overall purport of pleadings in the testimony of the EE witness EE in the court, i.e., (i) the instant gift without written consent, and (ii) the Defendants testified to the effect that the said EE permitted the transfer of the instant share to BB on December 4, 2012 without the consent of the EE, and the testimony content was also about the time when the transfer of share was permitted, and (iii) there was no objective evidence to deem that the instant gift was actually made on December 14, 2012 or the instant corporate registry by the Defendants on December 14, 2012.

Therefore, it is apparent in the record that the lawsuit in this case was filed on December 6, 2017, within five years from that time, and therefore, this part of the defendants' defense is without merit.

2) Determination on the exclusion period of one year and defense

A) In exercising the obligee’s right of revocation, “the date when the obligee becomes aware of the cause for revocation” means the date on which the obligor becomes aware of the fact that the obligor had committed a fraudulent act while knowing that it would prejudice the obligee. This is insufficient to simply recognize the existence of a certain fraudulent act, and further, know the existence of a specific fraudulent act and the fact that the obligor had an intent to deceive the obligor. Meanwhile, when the State exercises the obligee’s right of revocation by using the claim as the preserved bond, it should be determined based on the tax official’s awareness in charge of the business related to the collection and preservation of the taxation claim, barring any special circumstance, whether the State was aware of the cause for revocation in relation to the starting of the exclusion period, barring any special circumstance, the State should be deemed to have known not only the tax official’s disposal of the delinquent’s property, but also the existence of a specific fraudulent act and the fact that the obligor had an intent to injure the obligee (see, e.g., Supreme Court Decision 2015Da24707, Jun. 15, 2017).

B) Comprehensively taking account of the aforementioned evidence, Gap evidence Nos. 5 through 18, Eul evidence Nos. 1 through 6, and Eul evidence Nos. 8 through 11 (including each number), the whole purport of the pleadings is as follows: ① AB was paid compensation for expropriation of the land owned by it on or around December 2010 but did not report capital gains tax to BB; ② CB was subject to the disposition of imposing capital gains tax on the real estate owned by BB on January 8, 2013; ② CB was subject to the disposition of seizing’s seizure on the real estate owned by BB on or around March 18, 2013; ③ was subject to the disposition of seizing’s seizure on the deposit money deposited by BB on or around October 29, 2013; ③ was subject to the disposition of imposing capital gains tax on the real estate owned by B prior to the sale of the real estate owned by B, but the Plaintiff was also subject to the disposition of seizure on or around 30, 2013.

However, each of the above evidence: (i) the following circumstances that can be acknowledged by comprehensively taking account of the overall purport of argument as to Gap evidence Nos. 19 through 26; (ii) the seizure and disposal of the real estate owned by BB after the delinquency in payment of the transfer income tax of this case, and the property related to the lease deposit thereafter; (ii) the affairs related to the donation of this case are in charge of the property tax 2; and (iii) even if Do tax is not, the person in charge of the affairs related to the imposition and default of transfer income tax and the gift tax are in charge of the affairs related to the gift tax. In particular, it is difficult for the defendants to easily find that the public officials belonging to Do tax office were in charge of the above affairs related to the gift of this case from the point of view that it was difficult for them to find that the public officials belonging to Do tax office were in charge of the above affairs related to the gift of this case to have known the fact that the public officials were in charge of the improvement of the taxation claim of this case through the integrated computer network for national tax exemption.

3. Judgment on the merits

(a)the existence of preserved claims;

As seen earlier, the Plaintiff’s taxation claim against BB due to the delinquency in capital gains tax by BB (405,301,340 won) is the preserved claim of the obligee’s right of revocation in this case.

Furthermore, the amount of the obligee’s right of revocation includes the interest or delay damages incurred from the date of closing argument in the court of fact-finding 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 the interest on the unpaid portion in the event national taxes are not paid by the deadline for payment. As long as a tax claim is recognized as a preserved claim of the obligee’s right of revocation, the amount of such tax claim includes the additional dues incurred from the time of closing argument in the court of fact-finding after the fraudulent act (see Supreme Court Decision 2006Da66753, Jun. 29, 2007). Therefore, the Plaintiff’s additional dues (201,05,480 won) among the instant tax claim in the

B. The establishment of fraudulent act and the existence of the intention of deception

1) Whether BB is insolvent

(5) Comprehensively taking account of the aforementioned evidence: (1) around December 2012, BB-mortgage No. 14-1 to C-B-3; (2) around 30, the debtor was 10,00,00,00,000,00 won of B-B-1 to B-3; (3) the debtor was 20,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,00,000,000,00,000,00,00,000,00,00,00,00,00,00,00,00,00 won, 20,00,00,00 won.

According to the above facts, BB is deemed to have been in excess of the obligation at the time of the donation of this case ( even based on the evidence submitted by the Plaintiff, it is difficult to clearly grasp active property, such as the accurate value of the real estate owned by BB or the amount of debts, and small property. However, according to the above facts of recognition, at least BB can be sufficiently confirmed that there was a debt excess.)

(ii)the intent to commit fraudulent acts and to commit fraud;

"Act detrimental to creditor" refers to an act that is the subject of creditor's right of revocation, and thereby, constitutes a fraudulent act, and thereby, the act that the debtor's passive property exceeds active property or lacks debt (see, e.g., Supreme Court Decisions 2002Da27903, Aug. 27, 2002; 2009Da9047, Jan. 28, 2010). As seen earlier, BB was in excess of debt at the time of the donation, and the above donation aggravated, and thus, BB aggravated debt. Accordingly, in excess of debt, the act of donation of one-half shares among the shares of this case to the defendants who are children of this case constitutes a fraudulent act, and the intent of harm to BB is presumed to be a beneficiary, and the Defendants' bad faith is presumed to be a beneficiary.

Therefore, the agreement on the transfer of shares, which is the gift act of this case, should be cancelled as a fraudulent act, and the defendants have the duty to restore to their original state the shares of this case 1/2 to BB and to notify CCC that each of the above shares was transferred to BB.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the plaintiff's claim against the defendants is revoked and it is so decided as per Disposition.