The gift tax initially imposed on the gift which is a fraudulent act shall not be deducted within the scope of restitution.

Even if a beneficiary was to bear the gift tax by receiving a gift, this is a tax obligation of the beneficiary, which has been established after the donation, so the revocation of fraudulent act and the restoration to original state shall not be deducted within the scope of restoration, and even if the donation contract is revoked due to revocation of fraudulent act, the disposition imposing the gift tax does not become null and void as it

Article 30 of the National Tax Collection Act

2011Chap 21097 Revocation of Fraudulent Act

Korea

KimA

April 10, 2012

April 17, 2012

1. The contract concluded on May 14, 2008 and May 30, 2008 between the defendant and the non-party priorB shall be revoked within the limit of KRW 000.

2. The defendant shall pay to the plaintiff 00 won and 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

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

The same shall apply to the order.

1. Basic facts

A. Formation of a taxation claim

1) On May 1, 2008, NewB transferred OOO apartment reconstruction association of 00 dong 00 dong 7,000 and 000 (hereinafter “instant real property”) to KimCC and NewD, Songpa-gu, Seoul, and agreed on May 1, 2008 (hereinafter “instant transfer agreement”) that the buyer deducteds the amount of KRW 000 and KRW 000 after deducting the remainder from the above amount of KRW 00,000 and KRW 000,000, the intermediate payment was received on the date of the contract, and the intermediate payment was paid on May 14, 2008, and the buyer agreed that the buyer succeeds to the remainder of KRW 00 (hereinafter “instant transfer agreement”).

2) On July 30, 2008, a newB reported and paid a transfer income tax of KRW 000,000, and the Plaintiff notified the newB to pay KRW 000,000 under-reported transfer income tax until January 31, 2010. However, the newB fails to comply with this and fails to pay national taxes (including additional dues) of capital gains tax of KRW 00 (hereinafter “instant tax claim”).

B. Receiving money from an account under the name of the defendant

1) When entering into the instant transfer contract, the Defendant received KRW 000 out of the down payment on May 1, 2008, the intermediate payment of KRW 000 on May 14, 2008, and the remainder of KRW 000 on May 30, 2008 through the Defendant’s bank account in the name of the Defendant.

2) Of the above received money, the Defendant re-transfered KRW 000 on May 15, 2008, and KRW 000 on May 30, 2008 to another bank account of the Defendant for personal debt repayment, etc.

[Grounds for Recognition] The facts without dispute, the entries in Gap evidence 1 through 6 (including each number in the case with virtual number), and the purport of the whole pleadings

2. Determination as to whether a donation contract is concluded

A. The parties' assertion

The plaintiff asserts that since the newB received part of the amount to be paid by the newB as a passbook in the name of the defendant and used it in all, the newB contributed the defendant to the amount equivalent to KRW 000,000. This asserts that the defendant merely received the amount as a passbook in the name of the defendant, and that it was a contract for a third party between the newB and the KimCC, and that the newB lending the amount to the defendant, and that the defendant bears an obligation equivalent to the amount.

B. Determination

In full view of the following facts: (a) on each payment date under the transfer contract of this case, considerable portion of the price was paid to the account in the name of the defendant, not the newB; and (b) on the day following the payment of intermediate payment and the day of the payment of intermediate payment, the defendant only transferred the payment to another account in the name of the defendant and used it for the defendant's personal purpose; and (c) there are no circumstances to deem it used for the newB; and (d) whether the newB and the KimCC establish a contract for a third party, separate from whether the newB and the KimCC, the newB had the KimCC pay the money to the defendant, and there is no evidence to prove that the newB would have lent the money to the defendant; and (e) there is no other evidence to prove that the newB would have lent the money to the defendant; and (e) it is reasonable to deem that the newB donated the money to the defendant in the name of the defendant.

3. Determination as to the claim for revocation of fraudulent act

(a)the existence of preserved claims;

1) In principle, a claim protected by the obligee's right of revocation needs to be protected before the act was conducted, but it is highly probable that at the time of the fraudulent act, there was a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future in the near future, and where a claim has been established as a result of realizing the possibility in the near future, the claim may also become a preserved claim of the obligee's right of revocation. This legal principle applies to a tax claim. This legal principle also applies to a tax claim, even if there was no disposition of imposition by the relief decision of correction, etc. at the time of the fraudulent act, even though there was no basic legal relationship as to the occurrence of a claim under the protocol, and where a tax claim was established specifically through a series of procedures, such as a decision of correction, etc., where it is highly probable that a claim will be established in the near future (see Supreme Court Decision 200Da37821, Mar. 23, 2001).

2) On May 14, 2008, and May 30, 2008, when the newB received the payment from the account in the name of the defendant, the notice date of national tax payment for the taxation claim of this case was made on May 14, 2008 and May 1, 2008, and the transfer contract of this case, which is the cause of the transfer income tax, was made on May 1, 2008 before the above date, and there was a basic legal relationship as to the occurrence of the taxation claim of this case, and if the real estate is transferred, the transfer income tax is imposed on the transferor. According to Article 21(1)1 of the Framework Act on National Taxes, income tax was established when each taxable period ends in the near future, and it was probable that the taxation claim of this case was established on the basis of the above legal relationship, and it was probable that it was established because the taxation claim of this case was established on the basis of the fact-finding claim, and it is recognized that the interest claim of this case can be included in the taxation claim of this case.

B. Establishment of fraudulent act

In order to become a fraudulent act, the debtor's act of disposal of the debtor's property should cause a decrease in the debtor's whole property, that is, the debtor's small property should be more than active property (Supreme Court Decision 2001Da32533 Decided October 12, 2001). In full view of the facts that there was no dispute between the parties involved, as well as the entries and arguments in subparagraphs 3 and 7, and that newB's active property at the time when each of the instant donations was made to the defendant, the newB's active property at the time when each of the instant donations was made constitutes the creditor's active property at the time of May 14, 200, and KRW 00, total amount of the deposit claims at the time of the instant transfer contract, and KRW 00,000, total amount of the intermediate payment and remainder under the instant transfer contract, while the transfer of the real property to small property constituted the creditor's active property reduction in the amount of KRW 00,000,000.

(c) Presumption of intention and bad faith;

In addition, as long as the intention of the newB is recognized, it is reasonable to view that the newB was aware of the fact that most of the proceeds was donated to the Defendant and most of the proceeds was placed in excess of the debt, and that the newB was unable to fully satisfy the Plaintiff’s tax claim by reducing the joint security of the general creditors by granting each of the instant donations to the Defendant. In addition, as long as the previousB’s intention is recognized, it is reasonable to deem that the Defendant, who was his own child, was aware of the fact, and there is no other evidence to support that the Defendant was unaware of this.

D. Sub-determination

Therefore, each of the instant donations constitutes a fraudulent act, and thus, should be revoked, barring special circumstances.

4. Judgment on the defendant's defense

A. Defenses against the good faith principle

The Defendant conducted a tax investigation on the payment of real estate purchase price to the Defendant under the name of the Defendant, and collected gift tax. This is the Plaintiff’s assertion that each of the instant donations would be valid. However, in order to deny the exercise of rights on the grounds that it violates the principle of notions and good faith, the Plaintiff’s assertion that the gift tax should be cancelled is in violation of the principle of notions and good faith. In order to deny the exercise of rights on the grounds that it goes against the principle of notions, the other party’s belief should be deemed reasonable, and the exercise of rights against the other party’s faith should not be acceptable in light of the concept of justice (see, e.g., Supreme Court Decision 2004Da5556, Oct. 28, 2004). In light of the above, the Plaintiff’s new provision of No. 200 on the gift tax under Article 50 on the premise that health account of this case, Eul evidence No. 1, No. 23-2, and evidence No. 1, and No. 24, each of the gift tax imposed on the Defendant’s. 2000.

(b) Mutual aid or set-off defense;

It is clear that the Defendant imposed 00 won on the Defendant, and, if each of the instant donations was revoked within the limit of 00 won as indicated in the Plaintiff’s assertion, the actual amount of donation should be reduced accordingly, and the tax base after the deduction of 00 won for lineal descendants ( = 000 - 00 won which should have been actually paid) would not be 00 won ( = 00 x 100, and less than 100 won), and that the Defendant would not have any legal basis for revocation of the gift tax imposed on the Plaintiff, which would be 00 won for the above tax return, even if there were no apparent and apparent legal grounds for revocation of the gift tax imposed on the Plaintiff. It would be reasonable to view that the Defendant would not have any legal basis for revocation of the gift tax imposed on the Plaintiff, which would be 00 won or less, and that the Defendant would not have any legal basis for revocation of the gift tax imposed on the Plaintiff’s claim for return of the gift tax, as stated in the Majority Opinion.

5. Scope of revocation of fraudulent act and restoration to original state;

A. The right to revoke a fraudulent act is aimed at preserving the joint collateral of the claim, and the scope of revocation is limited to the extent necessary and sufficient to preserve the joint collateral. Accordingly, when the debtor is in excess of his/her obligation by the act of deception, it is sufficient for the creditor to cancel only the part which falls short of the joint collateral of the claim as long as the fraudulent act is divided, and the entire act cannot be revoked (Supreme Court Decision 2010Da36209 Decided August 19, 201).

B. As seen earlier, as to the instant case, the Plaintiff’s preserved claim amount is KRW 000,00, the delinquent amount of the transfer income tax of this case, including additional dues, and the amount of each of the instant donations to the Defendant of NewB constitutes KRW 000,000, considering that each of the instant donations to the Defendant of the NewB, including the Defendant is considered as a single fraudulent act. Therefore, the Plaintiff is sufficient to cancel each of the instant donations to the extent of the amount of the claim, and to obtain restitution accordingly. Accordingly, the scope of cancellation and restitution of the instant donation contract is KRW 00,00, the amount of the Plaintiff’s preserved claim amount.

C. Sub-decision

Therefore, each of the instant donations contracts entered into between the Defendant and NewB shall be revoked within the limit of KRW 000, and the Defendant shall be obligated to pay to the Plaintiff delay damages at the rate of KRW 000 and KRW 5% per annum under the Civil Act from the day following the day when this judgment becomes final and conclusive to the day of full payment.

6. Conclusion

Then, the plaintiff's claim of this case against the defendant is reasonable, and it is so decided as per Disposition.