Act of selling or selling real estate owned by a delinquent taxpayer to his/her kyk is a fraudulent act.

The act of selling real estate between the defaulted taxpayer and the defaulted taxpayer after the date on which the liability to pay the income tax was established constitutes a fraudulent act.

2013 Gohap45382 Revocation of Fraudulent Act

Korea

NewA

July 10, 2014

August 14, 2014

1. The sales contract concluded on August 5, 2008 between the defendant and the newB regarding the real estate listed in the separate sheet shall be revoked within the scope of the OOB.

2. The defendant shall pay to the plaintiff OOO and the plaintiff 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

(a) Relationship between the Parties

"The defendant is the kh of the new delinquent taxpayer B, and the newB is from August 25, 2006 to June 30, 2009, as the representative of the OOO-dong 1160-12 CCC 1, 200-3, 2009, engaged in the textile manufacturing business." (b) The plaintiff's taxation on newB.

The head of the Suwon Tax Office under the Plaintiff found that the newB received the processing tax invoice without any actual transaction at the time of the value-added tax return for 271 minutes in 2007, and that the newB did not report the global income tax on the recognized surplus income generated by DD. On December 29, 2009, the tax office imposed the global income tax OOOO on the newB on March 31, 2010 when the tax period was 2007, and the newB did not pay it up to the date, and thus, the amount of national taxes including the additional dues, included in the amount of national taxes, reaches the OO.

(c) trade between the newB and the Defendant;

"NewB on August 5, 2008, sold (hereinafter referred to as "the instant real estate") the real estate listed in the separate sheet (hereinafter referred to as "the instant real estate") to the Defendant, one of its members, and completed the registration of ownership transfer on the same day." (d) The details of the property of the newB at the time of the instant sale.

The details of the newB’s property at the time of August 5, 2008, which was the date of the instant transaction, are as follows:

(i)affirmative property;

No.

Indication of Property

Value (cost)

Evidence

1

The real estate of this case (land and buildings)

OOO

Gap evidence 10, 17

(OOOO won for building price + OOOO won for land price ¡¿ 120.6 square meters)

2

OOO-gu OO-dong 1291-146

EE apartment 101 Dong 301

OOO

Gap evidence 6-1

3

OOO-gu OO-dong 1123-18 402

OOO

Gap evidence 6-2

Total

OOO

2) Petty property

No.

Amount of debt (cost)

Evidence

1

OOO

Facts without dispute, Gap evidence 3-1

2

FFF milk cooperatives

OOO

Evidence No. 4 1, 2, 16

3

GGG Saemaeul Community Fund

OOO

Gap evidence 6 1, 8

4

HHH Saemaul Fund

OOO

Nos. 6 2, 9

Total

OOO

E. Cancellation of the right to collateral security and establishment of a new right to collateral security regarding the instant real estate

1) On May 25, 2004, the right to collateral security was established against the instant real estate as FF-related cooperatives. The said right to collateral security was cancelled on November 17, 2009 after the instant purchase and sale. At the time of cancellation, the said right to collateral security was OO won.

2) On November 29, 2011, a new collateral security was established with the mortgagee of the right to collateral security as a third cooperative.

[Ground for Recognition: Facts without dispute, entries in Gap evidence 1 through 17 (including each number; hereinafter the same shall apply) and the purport of whole pleadings]

2. Determination as to the cause of action

A. Formation of preserved claims

According to Article 21 (1) 1 of the Framework Act on National Taxes, the obligation to pay income tax is naturally established without any separate act of the tax authority or the taxpayer when the taxable period ends, and furthermore, according to Article 5 (1) of the Income Tax Act, the taxable period of income tax is from January 1 to December 31.

With respect to the instant case, the Plaintiff’s claim on global income tax against the Plaintiff’s NewB in 2007 constituted a tax liability on December 31, 2007, which was the end of the taxable period. The instant sales contract was subsequently concluded on August 5, 2008, and thus, the said tax claim is the preserved claim of the obligee’s right of revocation.

In addition, the additional dues under Articles 21 and 22 of the National Tax Collection Act are the kind of incidental dues imposed in the meaning of interest for arrears on unpaid portion if national taxes are not paid by the due date. If national taxes are not paid by the due date without the due date of payment by the due date without the due date of payment by the due date by the due date, the additional dues are naturally generated under Articles 21 and 22 of the National Tax Collection Act (see Supreme Court Decision 2006Da66753, Jun. 29, 2007) and the amount thereof is determined (see Supreme Court Decision 2006Da66753, Jun. 29, 2007). As such, it is highly probable that the above additional dues claims of the Plaintiff, including additional dues, will be established

B. Establishment of fraudulent act

According to the above facts, since the defendant's sales of this case exceeded active property and caused the shortage of joint security, the sales of this case is a fraudulent act against the plaintiff, who is the creditor.

(c) The occurrence of obligee's right of revocation;

In light of the financial status of the newB at the time of the instant transaction, the false declaration of value-added tax by the newB, the omission of global income tax return, and other circumstances leading to the instant transaction, it is reasonable to deem that the newB was aware of the fact that it would prejudice the Plaintiff at the time of the instant transaction, and the Defendant’s malicious intent is presumed presumed to have been the beneficiary. Therefore, barring any special circumstance, the Plaintiff may exercise the right of revocation against the Defendant, the beneficiary,

(d) Methods of reinstatement and scope of revocation of fraudulent act;

(i) the method of reinstatement;

In a case where a juristic act on a certain real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc. However, in a case where a mortgage is established, if a fraudulent act on real estate was established, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. As such, in a case where a registration of creation of mortgage was cancelled by repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself would be an order to recover the portion that was not originally constituted a joint security of the general creditors, thereby going against equity. Therefore, an order to cancel a fraudulent act and seek compensation for the value thereof within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate, and such calculation shall be based on the time of the conclusion of the trial at fact-finding proceedings (see, e.g., Supreme Court Decision 200DaO01, Dec.

As seen earlier, the establishment registration of a neighboring mortgage was completed with respect to the instant real estate with the FF milk cooperative as a mortgagee. Since the registration of ownership transfer was completed under the Defendant’s name and the registration of the establishment of a neighboring mortgage was cancelled, the instant sale should be cancelled within the scope of the balance obtained by deducting the amount of the secured debt, which was cancelled from the market price of the instant real estate at the time of the closing of pleadings, from the market price of the instant real estate, and the Defendant shall be obligated

2) Scope of revocation and compensation for value

Where part of a fraudulent act is revoked due to cancellation of mortgage, etc. and compensation for value is made, the revocation and compensation for value shall be limited to the smaller amount between the creditor's preserved claim and the joint collateral value of the instant real estate which is the object of the fraudulent act and the creditor.

According to the aforementioned evidence, the market price of the instant real estate is OOO as of May 30, 2014, near the date of the closing of the instant argument (i.e., OOOO. x 120.6 square meters), and the market price of the instant real estate is OOOO as of November 29, 201 (i.e., OOO. x 134.81 square meters). This is ratified to be the same as at the time of the date of the closing of the instant argument.

Therefore, if the market price of the instant real estate is deducted from OOO won (=OOOO won + OOOOOO won) which is the secured debt amount of the right to collateral security that was cancelled, the joint collateral value of the instant real estate is OO won (=OOO won - OOO won).

In addition, as seen earlier, the amount of the tax claim, which is the plaintiff's preserved claim, is an OOOO won exceeding the above amount of the joint security.

3) Scope of compensation for value

Therefore, the cancellation of the above fraudulent act and the compensation for the equivalent value should be made within the limit of the above joint security value and the amount of the above preservation claim, which is the smaller amount of the above joint security value. However, the plaintiff is seeking the cancellation and restitution of the original state only within the scope of the OOO members. As such, the sales of this case shall be revoked within the limit of the OO members as requested by the plaintiff. Accordingly, the defendant is obligated to pay damages for delay at the rate of 5% per annum as stipulated by the Civil Act from the day following the date this judgment became final and conclusive to the day of full payment to the plaintiff.

3. Judgment on the defendant's assertion

In regard to this, the Defendant’s bona fide assertion that the sale of this case did not know the facts prejudicial to the obligee.

"The following circumstances can be acknowledged by comprehensively taking account of the evidence and the purport of the entire pleadings in the statement No. 1, i.e., the market price at the time of the sale and purchase of the instant real estate. The sales and purchase price of the instant real estate is equivalent to KRW 00,000, KRW 80,000,000, KRW 80,000,000,000,000,000,000,000,000,000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00.

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.