Seoul Eastern District Court 2012 Gohap103422 ( March 23, 2013)

At the time of donation of this case, the delinquent taxpayer was in a state in which the passive property exceeds the positive property.

Since the delinquent taxpayer had been in excess of his/her obligation at the time of donation of this case, the gift of this case constitutes a fraudulent act.

Article 406 of the Civil Act

2013Na203526 Revocation of Fraudulent Act

Korea

IsaA

Seoul Eastern District Court Decision 2012Gahap103422 Decided July 23, 2013

August 20, 2014

September 5, 2014

1. The defendant's appeal is dismissed.

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

1. Purport of claim

Each gift contract entered in the list of donations between the defendant and the competent A (attached Form 1) shall be revoked.

The defendant shall pay to the plaintiff 93,00,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or acknowledged as a whole by Gap evidence Nos. 1, 2, 3, 7, and 8 (including the numbers), with the overall purport of the pleadings.

[1]

○○ A made registration as an individual entrepreneur under the trade name of 20O.O.O.O.O.O.O., and mainly purchased parts from domestic business operators and exported them to foreign countries through outsourcing processing, and closed 20O.O.O. business.

○○ filed a return on the value-added tax and the comprehensive income tax during the taxable period from 2007 to 2009, which operated the said company.

[2]

○ Around 2012, the director of the Jung-dong Tax Office and the director of the Gangwon-dong Tax Office under the Plaintiff paid value-added tax and the comprehensive income tax as shown in the following table 1 to the IC in relation to the above business, and since the IC did not pay it by the PO, the current standard delinquent tax amount is the OO.

[3]

The defendant, who is the wife of the ○○ unitA, entered into a sales contract for an apartment building No. 200O.O.O. (attached Form 2) No. 1 (hereinafter referred to as "O-dong apartment building") from KimA, and the down payment shall be KRW 00 million, and the down payment shall be KRW 00,000,000,000,000,000,000,000,000,000,000,000, out of the part payment shall be paid to the 20O.O. (O.).

○ On April 9, 2009 (Attached 2), the Defendant entered into a sales contract for an apartment building Nos. 2 (hereinafter referred to as “O-dong apartment building”) from thisA to purchase KRW 00,000,000, and the down payment shall be KRW 00,000,000,000 in the intermediate payment, and KRW 00,000 in the intermediate payment shall be paid toO.O. 20,000,000,000 won in the purchase price, but it decided to include KRW 00,000 in the purchase price.

○○ A donated total amount of OOO to the Defendant on six occasions, as stated in [Attachment 1] from O.O.O. to O.O.O., respectively (hereinafter “each gift of this case”), and the Defendant paid each purchase price with each of the above donations.

The defendant completed the registration of ownership transfer concerning 20O.O. O. O. O. O. O. O. O. O. O. O. O. O. O. O. O. O.O. apartment.

2. Determination

(a)the existence of preserved claims;

1) According to Article 21(1)1 and 7 of the Framework Act on National Taxes, each obligation to pay income tax and value-added tax is naturally constituted without any separate act of the tax authority or the taxpayer when the taxable period expires. Furthermore, pursuant to Article 5(1) of the Income Tax Act, the taxable period of income tax is from January 1 to December 31. According to Article 5(1) of the Value-Added Tax Act, the taxable period of value-added tax is from January 1 to June 30 in the case of the first period and from July 1 to December 31 in the case of the second period.

Although it is required that a claim that can be protected by the obligee's right of revocation has arisen prior to the act that can be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been 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, and where a claim has been created in the near future as the possibility has been realized in the near future, the claim may also become a preserved claim. This legal principle applies to a tax claim. As such, even if there was no specific taxation disposition at the time of the fraudulent act, there was a basic legal relationship as to the occurrence of a tax claim even though there was no specific taxation disposition at the time of the fraudulent act, and where a tax claim has been established specifically through a series of procedures in the near future, it may become a preserved claim (see, e.g., Supreme Court Decisions 200Da37821, Mar. 23, 2001; 2006Da67536, Jun. 29, 2007).

2) First, the competentA examines the preserved claims at the time when the competent AA made a gift Nos. 1 and 2 to the Defendant.

As of December 22, 2008, global income tax, value-added tax and value-added tax claim for the first term of 2007 year 2008 had already been established, u3000, and u300 had already been established, and the global income tax and value-added tax claim for the second term of 2008 year 2008 already commenced the relevant taxable period, and thus there was a legal relationship that forms the basis for establishing each such tax claim, and each tax claim has been established upon termination of the near future taxable period. As such, the global income tax and value-added tax claim for the second term of 2008 may also become the preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2004Da12004, Jul. 9, 2004).

Therefore, the tax claims Nos. 1 through 8 of Table 1 are preserved claims at the time of the above donation, and the amount of preserved claims is KRW 1,459,89,310 in total.

3) Next, the competent AA examines the preserved claims at the time when the competent AA made the Defendant (attached Form 1) Nos. 3 through 6 donations.

Tax claims amounting to KRW 1,459,89,310, which were recognized as of February 3, 2009, had already been established. According to the foregoing, from October 2005 to October 201, the amount of global income tax from 2007 to 2010 continued to have been at least KRW 200,000. In addition, as seen earlier, the value-added tax claim for January 2009 and global income tax claim for year 2009 had already been established during the pertinent taxable period, the legal relationship which forms the basis for establishing each tax claim was established. Since each tax claim was established after the close of the near taxable period, the amount of value-added tax claim for January 2009 and global income tax claim for year 2009 can also be the preserved claim for obligee’s right of revocation. Accordingly, the tax claim’s No. 11 or 11 of Table 1 at the time of each of the above donations is the total amount of preserved claim amount, KRW 136,37,296.

4) On the other hand, the defendant asserts that the amount of evaded tax should be recognized only as the above amount, on the criminal facts found guilty of the violation of the Punishment of Tax Evaders Act by the authority A, merely because the amount of evaded tax should be recognized as 612,03,000 won. However, on the other hand, the act of evading tax in the criminal act under Article 3(1) of the Punishment of Tax Evaders Act requires that the act of evading tax should be evaded by fraudulent or other unlawful act. On the other hand, the tax claim as the preserved bond of the obligee's right of revocation does

(b) Fraudulent act;

1) In full view of the purport of the entire pleadings in Gap evidence Nos. 4 and 5 (including each number):

Pursuant to the following facts, the affirmative and negative property at the time that Hong donated each of the instant money to the Defendant:

A. According to the above facts, at the time of each of the instant donations, the competent A has already been in excess of his/her obligation in excess of his/her positive property, and each of the instant donations aggravated his/her obligation by making the aforementioned donations.

2) At the time of May 12, 2009, the Defendant asserts that a sum of KRW 556,174,136 shall be included in active property since the Defendant had credit claims of KRW 556,136 on a total of KRW 556,174,136 to the CCC located in KIKO, BB, and Uzbekistan as of May 12, 2009. Accordingly, the Defendant stated that each testimony of the witness AA and CCC was related to the transfer of considerable amount of money by means of mutual trust, so-called exchange, etc. without any objective material to support it, and it is difficult to believe that each of the statements in the evidence Nos. 2 through 12 (including each number) at the time of donation of this case was insufficient to recognize that each of the instant donations held claims of KRW 556,174,136 at the time of donation, and there is no other evidence to acknowledge this otherwise. Therefore, the Defendant’s assertion on this part is without merit.

3) In addition, the Defendant asserts that the rightA should include the above KRW 93,00,00,000, which was donated to the Defendant by the Defendant, in the active property of the rightA at the time of donation. On the fifth day for pleading in the trial, the Defendant alleged that the rightA had been holding in cash the amount of KRW 100,000 to KRW 300,000,000, and there is no evidence to acknowledge that the Defendant had possessed in cash the money above each of the above donations at the time of the instant donation. In light of these circumstances, it is difficult to recognize that the rightA had possessed all of the total amount of KRW 93,00,000,000, which was donated to the Defendant from the time of the first donation, or that it had possessed cash above the amount of each donation

4) Therefore, each act of donation to the Defendant of cash held in excess of debt constitutes a fraudulent act as a result of the aggravation of excess of debt.

(c) A deceased noble doctor;

The rightA voluntarily returned the value-added tax and the global income tax for the taxable period from 2007 to 2009, and thereafter, the Defendant’s intent of death is recognized. In addition, considering the income of the rightA, the Defendant, the beneficiary, is presumed to have been aware of the intent of death of the rightA. In addition, the Defendant’s malicious intent is presumed to have been presumed. In light of the rightA’s income, the difference between active property and the passive property is very weak, and the Plaintiff’s notice of taxation was given only after three to four years from the date of each of the instant donations. As seen earlier, the rightA’s active property was considerably excessive at the time of each of the instant donations, and the taxation notice was given more than three to four years from the date of each of the instant donations, and it was merely because the rightA reduced or abolished sales and income, and the Defendant’s wife’s wife relationship is without merit.

(d) Revocation of fraudulent act and reinstatement;

Therefore, each of the instant donations must be revoked as a fraudulent act. As of August 20, 2014, the Plaintiff’s preserved claims are KRW 2,248,057,490, which is close to the date of the closing of argument in this case. As of August 20, 2014, the Defendant is obligated to pay to the Plaintiff the amount of KRW 993,00,000, which is the full amount of each of the instant donations received from the Plaintiff, and damages for delay calculated at a rate of 5% per annum as prescribed by the Civil Act from the day following the day when the judgment in this case became final and conclusive to the day of full payment. Meanwhile, the Defendant asserts to the effect that it is unreasonable to return the money donated on the ground of revocation of the fraudulent act since the Defendant already received each of the instant donations from the competentA and paid KRW 103,67,340,00 as gift tax. However, the Defendant’s payment of gift tax is merely based on the premise that the said donations were effective, and thus, it is not justified.

4. Conclusion

If so, the plaintiff's claim should be accepted for the reasons, and the judgment of the court of first instance is just for the conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.