Cheongju District Court 2012 Gohap4081 (2013.02.01)

It is difficult to see that the interest income on the loans of a corporation constitutes active property at the time of fraudulent act although it is imposed by the principle of confirmation of rights and obligations.

The confirmation of income due to the interest claim under the Corporate Tax Act will be based on whether or not the income has considerably mature enough possibility, and if there is no possibility that the interest claim can be repaid in reality due to the shortage of the debtor's assets, it will be a cause that can be treated as a bad debt when it is confirmed as impossible to recover, and it does not affect the taxation

(Cheongju)Revocation of Fraudulent Act 2013Na2014

Korea

CivilAA

Cheongju District Court Decision 2012Da4081 Decided February 1, 2013

August 13, 2013

September 3, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

(a) The primary claim

Each donation contract entered into between Nonparty BB Tourism Development Co., Ltd and the Defendant with respect to the OOO on September 16, 201, OOOO on September 20, 201, and OOOOO on September 27, 201 shall be revoked. The Defendant shall pay to the Plaintiff the amount calculated at the rate of 5% per annum from the day following the date this judgment became final to the day of complete payment.

(b) Preliminary claim

Non-Party BB Tourism Development Co., Ltd. shall revoke the Defendant’s performance of each obligation of the OOOO on September 16, 201, OOOOOO on September 20, 201, and OOOOOOO on September 27, 201. The Defendant shall pay to the Plaintiff the amount calculated at the rate of 5% per annum from the day following the date this judgment became final and conclusive to the day of full payment (the primary claim was excluded from the scope of the judgment of the first instance as the Plaintiff did not appeal against the dismissal judgment).

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

"The reasons for the judgment of this court are as follows: "At the time of the sale of each of the real estate in the case No. 3, No. 7 of the first instance court's decision, the time of the sale of the real estate in the case is " at the time of the sale of the real estate in the case," and, in addition to adding the judgment of the defendant to Paragraph 2, it is identical to the reasons for the judgment in Paragraph 1 (Recognition of Basic Facts) and Paragraph 2-b (Determination of Preliminary Claim) from among the reasons for the judgment of the first instance."

A. Summary of the defendant's assertion

(1) As of December 31, 2007, the base point for imposition of corporate tax for BB development, BB, as of December 31, 2007, shared and several debt obligations for CCC (hereinafter “CCC”) and CCC’s BB tourism development, the claim amounting to the CCC’s KRW 200 (hereinafter “claim against CCC et al.”) was the joint and several debt amounting to the GG Construction (hereinafter “GG Construction”) and GG Construction’s debt amount equivalent to the Plaintiff’s debt amount at the time of the instant debt payment, and thus, the Plaintiff did not assert any substantial value of BCC’s debt amount as of September 16, 201 as of the time of the instant debt payment. Accordingly, the Plaintiff did not assert that there was no legitimate value of BCC’s debt amount at the time of the instant debt payment. Accordingly, the Plaintiff’s taxation of BCC’s debt amount was contrary to the Plaintiff’s property development claim and its value at the time of the instant debt payment.

B. Determination

(1) Determination as to whether the Plaintiff’s taxation claim exists

(A) Relevant legal principles

The principle of confirmation of right refers to a method of calculating income when a right that is a cause of income exists between the time when income is determined and the time when income is realized. In light of the fact that a right that is not the time when income is realized and that income is calculated for the current year, it is significant to allow a taxpayer to levy income in advance on the premise that such income is realized in the future. Even if income is realized until it is realized, the right to generate income is considerably mature and definite in light of the feasibility of realization of such income. Thus, it cannot be said that there is an income generated only when it is established without such a degree, and it cannot be said that there is no possibility that income can be realized in the future by the debtor’s bankruptcy, etc. 20 years after the determination of 10 years of income tax (see, e.g., Supreme Court Decision 207Da1671, Sept. 7, 200).

(B) Determination

" 갑 제11호증, 갑 제12호증의 1 내지 6, 을 제2호증의 1, 2, 을 제3호증, 을 제4 호증의 1, 2, 3의 각 기재에 변론 전체의 취지를 종합하면, BB관광개발은 2006. 3. 28. CCC와 사이에, CCC가 진행하던 OO시 OO구 OO동 394-1 외 93필지 지상의 주상복합건물신축사업에 관하여, BB관광개발이 기투자한 OOOO원을 포함하여 OOOO원을 투자하기로 하되, CCC는 BB관광개발에게 투자원금으로 2006. 5. 31. OOOO원, 2006. 12. 15. OOOO원, 2007. 2. 20. OOOO원을, 투자수익금으로 2007. 3. 31 OOOO원을 각 상환하기로 하고, 위 투자원금 및 투자수익금의 보장을 위해 BB관광개발에게 주식회사 II씨앤씨가 발행하는 OOOO원의 약속어음과 OOOO원의 당좌수표를 교부하며, DD아이티 주식회사, 주식회사 FFF홀딩스, 한EE(이하DD아이티 주식회사 등'이라 한다)은 위 약속어음에 대하여 배서하기로 하는 내용의 투자약정을 체결한 사실, 나아가 DD아이티 주식회사 등은 CCC의 BB관광개발에 대한 채무를 연대보증 한 사실, CCC는 2007. 11. 14. BB관광개발에게 위 투자금 등의 반환을 담보하기 위하여 CCC가 주식회사 JJ부동산신탁에 신탁한 OO시 OO구 OO동 395-15 대 72.7㎡, 같은 동 401-30 대 117㎡, 같은 동 401-22 대 126.9㎡에 관하여 채권최고액 OOOO원의 근저당권을 설정한 사실(위 각 근저당권을 모두 이하이 사건 KKK 등에 대한 채권을 담보하기 위한 근저당권'이라 한다), BB관광개발은 CCC로부터 투자금은 물론 투자수익금을 전혀 상환 받지 못하자 DD아이티 주식회사 등을 상대로 2007. 5. 4. 서울중앙지방법원에 어음금 청구를 하여(위 법원 2007가합38033호), 위 법원으로부터 2007. 11. 28. 1. 피고 주식회사 II씨앤씨, 주식회사 FFF홀딩스, 한EE은 합동하여 원고에게 OOOO원 및 이에 대하여 2006. 7. 21.부터 2007. 1. 19.까지는 연 6%, 그 다음날부터 다 갚는 날까지는 연 20%의 각 비율에 의한 금원을 지급하라. 2. 원고의 회생회사 DD아이티 주식회사에 대한 회생채권은 OOOO원임을 확정한다 라는 내용의 판결을 받았고, 위 판결 은 2008. 1. 24. 확정된 사실, 또한 BB관광개발은 2006. 5. 23. GG건설과 사이에, GG건설이 진행하던 OO시 OO구 OO동 11-64 외 102필지 지상의 아파트신축사업에 관하여, BB관광개발이 OOOO원을 투자하기로 하되, GG건설은 BB관광개발에게 투자원금으로 OOOO원, 투자수익금으로 OOOO원 등 합계 OOOO원을 2007. 1. 23. 상환하기로 하는 내용의 투자약정을 체결한 사실, 위 투자원금 및 투자수익금의 보장을 위해 BB관광개발에게 GG건설의 대표이사인 김HH가 GG건설의 BB관광개발에 대한 채무를 연대보증 한 사실, 나아가 GG건설은 위 투자원금 등의 반환을 담보하기 위하여 BB관광개발에게 2006. 5. 23. 이LL 소유의 OO시 OO구 OO동 14-11 대 182㎡와 같은 14-11 2층 주택 등에 관하여, 2006. 5. 25. GG건설이 32/96 지분을 가진 OO시 OO구 OO동 11-36 답 96㎡와 GG건설이 44/132 지분을 가진 같은 동 11-36 2층 주택 등에 관하여, 2006. 6. 15.과 2006. 6. 20. GG건설이 34/102 지분을 가진 OO시 OO구 OO동 11-35 대 102㎡와 GG건설이 49.92/145.11 지분을 가진 같은 동 11-35 주택 등에 관하여 각 채권최고액 OOOO원의 근저당권을 설정한 사실(위 각 근저당권을 모두 이하이 사건 GG건설 등에 대한 채권을 담보하기 위한 근저당권'이라 한다), 이 사건 GG건설 등에 대한 채권을 담보하기 위한 근저당권 중 OO시 OO구 OO동 14-11 대 182㎡, 같은 14-11 2층 주택 등에 관하여 설정된 근저당권은 2006. 9. 7. 각 일부포기로 말소등기 된 사실이 인정된다.", 위 인정사실에 의하면, 원고의 이 사건 조세채권인 BB관광개발에 대한 2007 년 귀속 법인세 부과의 기준시점인 2007. 12. 31.을 기준으로 할 때, 위 각 투자수익금은 위 각 투자약정으로 이자소득이 발생할 가능성이 상당히 높은 정도로 성숙되었고, 위 각 투자약정에 따른 투자수익금 지급기일인 2007. 1. 13.과 2007. 3. 31.이 이미 경과함으로써 그 권리가 확정되어 BB관광개발에게 귀속된 것으로 봄이 상당하다.

The Defendant asserts that no change in the situation occurred with respect to the property and financial resources of BB tourism development between December 31, 2007, which was the base point of time for the imposition of corporate tax on BB tourism development from September 27, 201, which was the time of the instant debt payment, from September 27, 201. However, in light of the general social rule, it is difficult to deem that there was no change in the situation with respect to the property and financial resources of BB tourism development from December 31, 2007 to September 27, 201, when about 3 years and 107TI passed from September 27, 201 (the Defendant did not submit any other basis for the aforementioned argument). Considering that there was no change in the circumstances with respect to BB tourism development’s property and financial resources from September 27, 2011, the Defendant did not accept the Defendant’s assertion on the above mortgage transfer for the purpose of securing the claim for the instant GG construction under the name of the Defendant.

Therefore, as seen below (2), even if BB tourism development was not paid with investment profits from CCC or GG Construction after December 31, 2007, it was less likely that it would be paid with investment profits using a collateral security right to secure the claim against CCC, etc., and it was cancelled after December 31, 2007, or it was not possible to recover investment profits from CCC or GG Construction, etc. because there were no particular assets to secure the claim against the GG Construction, etc., the above circumstance alone is insufficient to readily conclude that BB tourism development was entirely impossible at the time of December 31, 2007, which was the base point of imposition of corporate tax for BB tourism development in 207, and that it was impossible to collect investment profits from the above 201 year on the premise that it was impossible to collect investment profits from the above 10th anniversary of the change in circumstances. Therefore, the Plaintiff’s assertion that it was impossible to collect investment profits from the above 10th year without any other reason.

(2) Determination as to whether BB tourism development is insolvent

(A) Relevant legal principles

The debtor's insolvency as a requirement for revocation of a fraudulent act means that the debtor's ability to repay is nonexistent, and in particular, if it is impossible to expect voluntary repayment, repayment through compulsory execution should be taken into account. Thus, the debtor's passive property should be based on the debt with actual obligation to repay. Thus, even if there is a debt under a judgment that has been declared provisional execution at the time of disposal, if it is later reduced by higher court judgment, only the reduced debt under the judgment shall be deemed small property. Meanwhile, in calculating the debtor's active property, the debtor's active property shall be excluded from the property that cannot serve as a joint security for the claim because it has no real value, unless there are other special circumstances. In particular, if the property is a debt, it shall be included in the active property only if it is affirmed by reasonably determining whether it can be easily repaid (see, e.g., Supreme Court Decisions 201Da32533, Oct. 12, 201; 2006Da325664, Feb. 65, 2006).

(B) Determination

B. On December 31, 2007, which is the base point of time for the imposition of corporate tax for 207, 201. According to the fact that the 20th anniversary of the transfer of claims to the 30th anniversary of the 1st anniversary of the 207th anniversary of the 207th anniversary of the 3rd anniversary of the 206th anniversary of the 206th anniversary of the 1st anniversary of the 206th anniversary of the 206th anniversary of the 3rd anniversary of the 1st anniversary of the 206th anniversary of the 1st anniversary of the 206th anniversary of the 7th anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 3rd anniversary of the 1st anniversary of the 2nd anniversary of the 3rd anniversary of the 1st anniversary of the 2nd of the 3rd anniversary of the 2nd of the 3rd anniversary of the 2nd of the 2nd 2nd of the 3rd of the 2nd AO Construction Policy.

In full view of the facts in the instant case and the facts acknowledged as above, in cases where the time of the instant debt repayment, which was conducted from September 16, 201 to September 27, 2011, was based on the time of the instant debt repayment, and where claims against CCC, etc. and claims against GG construction, etc. were in a situation where it is difficult to receive reimbursement due to the existence of other physical collateral with priority over the physical collateral even if there is no physical collateral or a physical collateral. Therefore, it is reasonable to deem that BB tourism development exceeded the obligation at the time of the instant debt repayment act. Accordingly, the Defendant’s assertion on the different premise is without merit without further review.

3. Conclusion

If so, the plaintiff's conjunctive claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.