It is difficult to recognize a high probability with respect to the occurrence of claims.

The establishment time of the value-added tax in this case is the time when the value-added tax is imposed and notified, that is, when the claim of the value-added tax established abstractly becomes final and conclusive, it is reasonable to view it as October 4, 201.

2014Da222787 Revocation of Fraudulent Act

Korea

AA

Seoul High Court 2013Na2023141 ( August 11, 2014)

March 15, 2018

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Article 6(1) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) provides that “the supply of goods shall be a delivery or transfer of goods on all contractual or legal grounds.” However, in the case of a housing sale trust where a business entity, a truster and a trustee, transfer ownership of real estate on the grounds of a housing sale trust agreement to a housing sale guarantee company, a trustee and a trustee, the sales guarantee company, takes over ownership of trust property from a business entity pursuant to a trust agreement, and supplies goods on the premise of the transfer of ownership of trust property from the business entity, and accordingly, it cannot be deemed that there was a supply of goods separate from the transfer of the original trust property solely on the ground that the sales guarantee company refunded the proceeds to the seller based on the housing sale guarantee agreement, and only when disposing of trust property on the trustee’s position, there is the supply of goods to the other party to transaction (see Supreme Court Decision 2014Du13393, Jun. 15, 2017).

A. BB (hereinafter referred to as “B”) around 2005 entered into a contract for the construction and sale of the instant apartment in the Hannam District of Gwangju Mine District, and the Defendant entered into the construction contract with B on April 19, 2007. BB around May 2007, entered into a contract with the Korea Housing Guarantee Co., Ltd. (hereinafter referred to as the “Korea Housing Guarantee Co., Ltd.”) for the sales of the instant apartment project, and the Korea Housing Guarantee Co., Ltd. (hereinafter referred to as the “Korea Housing Guarantee Co., Ltd.”) was liable for the warranty against the buyer if BB is unable to continue the business due to its default and bankruptcy, and if the Korea Housing Guarantee Co., Ltd takes the responsibility for the guarantee, the Korea Housing Guarantee Co., Ltd. agreed to transfer all the rights to the instant apartment project to the Korea Housing Guarantee Co., Ltd. and completed the registration of ownership transfer due to the housing trust in the future.

C. BB discontinued the construction of the instant apartment due to the default on August 2009, and the buyer cancelled the sales contract and demanded the return of the sales price, the housing guarantee was returned to the buyer in accordance with the said sales guarantee contract. BB transferred all rights to the instant apartment project to the housing guarantee contract.

D. On October 4, 201, on the ground that the head of the original tax office omitted the sales tax base return following the transfer of the right to real estate held in trust on BB’s house on the ground that the said transfer of the right to real estate held in trust was omitted, the head of the original tax office imposed and notified the current business owner of the value-added tax and the additional tax of KRW 2.62,154,180 (hereinafter “value-added tax”).

E. Meanwhile, on January 25, 2010, B filed an application for the refund of value-added tax on the ground of the cancellation of sales related to the sale of apartment units in this case. On March 9, 2010, B filed an application for the refund of value-added tax on the ground of the Plaintiff’s cancellation of sales related to the sale of apartment units, B transferred 1.7 billion won out of the above money to the Defendant on March 26, 2010, and partially repaid the Defendant’s loan obligations against the Defendant (hereinafter “the instant repayment”). The lower court rejected the Plaintiff’s claim for the payment of value-added tax on the instant housing unit under the premise that the Plaintiff’s claim for the sale of the instant apartment units was not established on the premise that the Plaintiff’s claim for the sale of the instant apartment units constitutes fraudulent act detrimental to the Plaintiff’s claim for value-added tax against B, and that it is difficult to recognize that the time of establishment of value-added tax claim for the instant sale of the instant housing unit after the establishment of the Plaintiff’s claim for sale of the instant housing unit.

Although the court below acknowledged the existence of value-added tax claim in this case and there are some parts inappropriate in its reasoning, the court below held that the creditor's right of revocation is not recognized as preserved claim.

In conclusion, determination is justifiable. Contrary to the allegations in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the timing of establishment of value-added tax claims and high probability of establishment

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.