Gwangju District Court Gwangju District Court Decision 2012Gadan70474 ( November 02, 2012)

additional tax claim of capital gains tax shall also constitute preserved claims and small property.

The additional tax claim of capital gains tax also constitutes a preserved claim for revocation of a fraudulent act, and thus constitutes a small property to determine whether an obligor is insolvent at the time of a fraudulent act, and thus, the transfer of ownership of the real estate in this case to a related party constitutes a fraudulent act.

§ 406. Revocation of Civil Code

2012Na51574 Revocation of Fraudulent Act

Korea

1. The lowestA 2. KimB

Gwangju District Court Decision 2012Da70474 Decided November 2, 2012

July 10, 2013

July 24, 2013

1. Revocation of a judgment of the first instance;

2. As to real estate listed in the separate sheet:

A. Revocation of the contract of donation between Defendant LA and KimCC on July 21, 2008

B. 1) Defendant LA has completed the transfer of ownership by the receipt No. 16274 of the receipt of July 22, 2008 to the Gwangju District Court YA KimCC;

2) Defendant KimB: (a) the transfer registration of ownership that was completed under the receipt No. 10520 of August 17, 2010 by the same registry office to Defendant LA;

Each cancellation registration procedure shall be implemented.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Basic facts

A. Tax claim against the plaintiff KimCC

1) On January 30, 2008, KimCC transferred 21 parcels, other than real estate located at OO-si O-si No. 153, and ② on March 21, 2008, real estate located at O-si O-dong No. 1519-5 and one parcel, other than real estate located at O-si No. O-dong No. 1519-5 (hereinafter collectively, referred to as “transferable real estate”).

2) The KimCC did not report and pay the transfer income tax pursuant to the transaction of the instant transferred real estate (hereafter in this case, the transfer income tax), and the head of the relevant tax office under the Plaintiff’s control notified the KimCC of the taxation of the transfer income tax amount on December 31, 2010. On March 2, 2011, the payment deadline of the transfer income tax was March 31, 201, the head of the relevant tax office decided to pay the amount of the OOOOO (=the total determined tax amount amount + the total amount of OOOOO + the additional tax of the non-repaid + the additional tax of the non-repaid tax amount) - the amount of the pre-paid tax amount as of June 29, 2010.

3) The KimCC did not pay the total amount of the instant capital gains tax and additional tax notified by the Plaintiff until the date of closing argument in the appellate trial (=OOOwon +OOOOOwon).

B. Disposition by KimCC

1) On July 21, 2008, KimCC donated each real estate listed in the separate sheet to Defendant LA (hereinafter the instant donation agreement). As to each of the above real estate, the registration of transfer of ownership was completed as No. 16274 on July 22, 2008 by the Seocheon District Court’s Hycheon Branch Branch Branch Office of the Gwangju District Court.

2) On June 21, 2010, Defendant LA entered into a sales contract with Defendant KimB, the husband of Dong Kim-B with respect to each real estate listed in the separate sheet (hereinafter “instant sales contract”). As to each of the above real estate, the registration of transfer of ownership was completed on August 17, 2010 with receipt No. 10520.

C. Financial status of KimCC

1) On July 21, 2008, when the donation contract of this case was entered into, it is also an OO-gun 473m2, O-gun 473m2, O-dong 851 O-dong 202m2, O-type 75-1m2, O-type 1,322m2, O-type 1911-8m2, O-type 1984m2, O-type 684m2, O-type 1911-9, O-type 397m2, O-type 397m2, O-type 153m2,983m2, O-type 1583m2, O-type 197m2, O-type 197m25,000, O-type 197m2,000 at the time of O-type 13m2,000.

2) At the time of KimCC’s small property (1) is the tax liability of the Plaintiff as referred to in paragraph (a) and (2) is the OFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFCFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFD 27, 2008.

[Ground of recognition] In without dispute, Gap evidence Nos. 1, 4, 5, 7, 9 and Eul evidence Nos. 1 (including each number other than evidence No. 4-2; hereinafter the same shall apply), the fact-finding with respect to the National Agriculture Federation of the court of first instance, the result of the inquiry of the facts and the result of the order to submit financial data, the result of the appraiser Kim Jong-hun's appraisal, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

On June 21, 2010 and March 2, 2011, the Plaintiff notified OOOOO of the total transfer income tax to the KimCC. The KimCC concluded the instant donation agreement with the Defendant LA on July 21, 2008 with the wife on the status that the small property exceeds positive property, thereby reducing the common security of the creditors of the KimCC and deepening the status of over obligations. The instant donation agreement between the KimCC and the Defendant LA shall be revoked as a fraudulent act, knowing that it would prejudice the Plaintiff, and the registration of ownership transfer in the name of Defendant LAA and the transfer of ownership in the name of Defendant KimB, a bad faith purchaser who bought each of the above real property from Defendant LA, should be revoked, respectively.

B. The Defendants

1) On October 21, 2008, the Plaintiff seized 37 m2, 431 m2 in OO-gun O-gun OO-gun OO-gun O-gun, but cancelled on February 4, 2010. However, the Plaintiff filed the instant lawsuit more than 3 years and 6 months after having been aware of the above donation at the time of seizure. As such, the instant lawsuit was subject to exclusion period.

2) At the time of the donation contract of this case, the transfer income tax claim of this case cannot be the preserved claim of obligee’s right of revocation in a state where the claim is not finalized.

3) The issue of the insolvency of KimCC ought to be determined at the time of the fraudulent act, and the transfer income tax of this case was not finalized at the time of the instant donation contract. As such, the tax liability included in the small property ought to be limited to the capital gains tax OOOOE that occurred at the time of the instant donation contract, and the additional tax on the transfer income tax of this case (hereinafter the instant additional tax) is not included in the small property of KimCC. At the time of the instant donation contract, KimCC did not constitute a fraudulent act because it did not have any debt excess, thereby not constitute a fraudulent act.

4) Considering the following circumstances: (a) KimCC and Defendant LAA knew that the instant transfer income tax was unpaid; (b) two years have elapsed after the instant donation contract was made; (c) Defendant LA entered into the instant donation contract for the purpose of division of property and support to Defendant LA who is the wife for the elderly; (d) KimCC owned the real estate on nine or more parcels of land at the market price after the instant donation contract was entered into; and (e) Defendant LAA paid a provisional attachment on the donated real estate after the instant donation contract, Defendant LA did not know that the instant donation contract was detrimental to other general creditors, including the Plaintiff. Moreover, Defendant LAA was unable to cope with the collateral debt established on the instant donated real estate after Defendant B purchased the said real estate at the normal price, and thus Defendant B did not have any intention to inquire about or accept the said real estate.

3. Determination

(a) Whether the exclusion period is expired;

According to Gap evidence No. 1-4, the plaintiff seized 4431 square meters of forest land in OO-gun OO No. 3731 m2, Oct. 21, 2008, the plaintiff is deemed to have been aware that the contract of this case was a fraudulent act at the time when the above seizure was made, and the defendant's above assertion is not accepted, since there is no other evidence to acknowledge that the contract of this case was a fraudulent act.

(b)the existence of preserved claims;

1) In principle, a claim that can be protected by the obligee’s right of revocation requires that an act was conducted prior to the occurrence of a fraudulent act, but there exists a legal relationship that serves as the basis for the establishment of a claim at the time of the fraudulent act, and that the claim is established in the near future. In fact, where a claim is established because the probability is realized in the near future in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 2001). The transfer income tax claim is naturally constituted under the law without any separate procedure of the tax authority or the taxpayer (Article 21(1)7 and (2)2 of the Framework Act on National Taxes) and becomes definite when determining and notifying the amount of tax, etc. to the taxpayer.

2) First of all, income tax on the transfer income tax claim of this case is a tax to be paid by preliminary return. The liability for payment is abstractly established on the last day of the month (the month to which the date of the transfer of assets belongs) in which the amount constituting the tax base accrues (see, e.g., Supreme Court Decision 88Nu2519, Oct. 13, 1989). Since KimCC sold the transferred real estate of this case on January 30, 2008 and March 21, 2008, it is probable that the transfer income tax claim of this case was not made final and conclusive on the last day of each month, namely, on January 31, 2008 and March 31, 208, and that the transfer income tax claim of this case was not made final and conclusive on March 31, 2008, and thus, it constitutes a basic legal relationship with the transfer income tax claim of this case, which was made final and conclusive on May 31, 2008.

3) In addition, the Plaintiff contests whether the instant additional tax claim is included in the small property, but first, it is determined whether the instant additional tax claim constitutes the creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s creditor’s claim under Article 115 of the Income Tax Act was established by transferring the instant transferred real estate immediately before the instant donation contract was concluded. In light of the fact that KimCC did not entirely implement the scheduled return of the transfer income tax base return and the final return and the final return procedure, it was highly probable that Kim

4) In principle, when a creditor exercises his right of revocation, he cannot exercise his right of revocation in excess of his own claim amount. At this time, the creditor's claim amount includes interest or delay damages incurred after the fraudulent act and the time the conclusion of arguments in fact-finding proceedings is concluded (see, e.g., Supreme Court Decisions 2000Da66416, Sept. 4, 2001; 2003Da19572, Jul. 11, 2003). Meanwhile, the additional dues and increased 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 on unpaid portion if national taxes are not paid by the due date, and the amount is naturally determined by the provisions of Articles 21 and 22 of the same Act if national taxes are not paid by the due date without the due date for determination of the right of revocation (see, e.g., Supreme Court Decision 200Du2013, Sept. 22, 2000).

(c) Fraudulent act;

1) Fraudulent act means a fraudulent act that makes it impossible to fully satisfy a claim due to a lack of joint security for claims due to the debtor's disposal of the debtor's property or a lack of joint security already in the state of shortage.

According to the above facts, the small property of KimCC, including the instant tax liability, at the time of the instant donation agreement exceeds OOOO members (i.e., OO., the instant tax liability + OOO.S.A.S.C.C.C. ＋’s indemnity liability for the reimbursement of the reimbursement for the National Agricultural Cooperative Credit Guarantee Fund + OOOO.S.C.C.C.C.C., KimCC had already been in excess of its liability, and it can be seen that the above obligation was deepened due to the instant donation agreement by KimCC.

2) Meanwhile, in determining whether an obligor’s insolvency, which is the requirement for the exercise of the obligee’s right of revocation, is insolvent, it is required that, in principle, the passive property, which is the subject matter thereof, was generated prior to the commission of an act that can be viewed as a fraudulent act, but there has already been a legal relationship that serves as the basis for the establishment of an obligation at the time of such fraudulent act, and in the near future, it is highly probable that the obligation should be established in accordance with such legal relationship in the near future, and in the near future, the obligation should also be included in the obligor’s small property

13.See Supreme Court Decision 2010Da68084 Decided 2010

As seen earlier, at the time of the donation contract of this case on July 21, 2008, the legal relationship, which is the basis of its establishment, had already been established as to the obligation of the transfer income tax and additional tax against the plaintiff of KimCC at the time of the donation contract of this case. There was a high probability for KimCC to establish the obligation of the transfer income tax and additional tax of this case in the near future because it did not make a provisional return on profit return and a final return on the tax base of transfer income, etc. In fact, the possibility was realized in the near future, and the obligation of the transfer income tax and additional tax of this case was established. Thus, in determining the insolvency of KimCC, the obligation of the transfer income

(d) The doctor of the private will;

If a debtor has donated his/her own property to another person in excess of his/her obligation, such act constitutes a fraudulent act unless there are special circumstances (see Supreme Court Decision 2005Da28686, May 31, 2007). Since the act of donation objectively constitutes a fraudulent act, the beneficiary's bad faith is presumed to have been committed, so long as the beneficiary does not prove that he/she had acted in good faith at the time of the act of donation, the creditor may cancel the act of donation and claim restitution for the original state accordingly (see Supreme Court Decision 2007Da74843, Feb. 14, 2008).

In light of the above facts, KimCC shall be deemed to have known at the time of the donation contract of this case that each of the gift of this case was a fraudulent act detrimental to the general creditor including the plaintiff, and the beneficiary and the subsequent purchaser shall be presumed to have been malicious.

The Defendants asserted that they were bona fide. However, the following circumstances are acknowledged by the overall purport of Gap evidence Nos. 3 through 5 and 7, namely, (1) KimCC acquired a tax accountant qualification, operated a tax accounting office (from November 5, 1981 to January 1, 1989), and could have known the fact that a considerable amount of capital gains tax has occurred due to the sale of the transferred real estate, and that capital gains tax is an obligation to pay taxes. (2) KimCC donated three real estate lots owned by KimCC to defendant LA on July 22, 2008, the following day after the donation contract of this case, and sold one piece of real estate on July 23, 2008, and sold all remaining five parcels of real estate to others from October 2008, and (3) KimCC sold all real estate properties to others, and (4) it is difficult to find that there was no evidence of the Defendants’ ownership transfer registration between Defendant 1 and 201.

D. Therefore, the instant donation contract constitutes a fraudulent act against the Plaintiff, who is another creditor, barring any special circumstances. Ultimately, the Plaintiff may cancel the donation contract concluded on July 21, 2008 with the Defendant LA on the real estate listed in the separate sheet, as a fraudulent act, and seek the implementation of the procedure for the registration of cancellation of ownership transfer in its name as restitution to the Defendant LA, and seek the implementation of the procedure for the registration of cancellation of ownership transfer in its name against the Defendant KimB, who is a malicious purchaser.

4. Conclusion

Therefore, with respect to the real estate listed in the separate sheet, the contract for the cancellation of the gift as of July 21, 2008 between Defendant LA and KimCC was revoked, and Defendant LAB is obligated to implement the procedure for the cancellation of ownership transfer registration as of July 22, 2008, which was completed by the 16274 of receipt on July 22, 2008 by the Gwangju District Court YA, and Defendant KimB is obligated to implement the procedure for the cancellation of ownership transfer registration as of August 17, 2010, which was completed by the 10520 of receipt on August 17, 2010 of the same registry office, with respect to the real estate listed in the separate sheet, all of the claims of the Plaintiff are accepted. The judgment of the first instance is unfair by accepting the plaintiff's appeal, and the judgment of the first instance court is revoked and the execution of the procedure for