Changwon District Court Msan Branch-2014-Annex-1621 ( December 12, 2014)

It is difficult to recognize that the debtor was in insolvent at the time of fraudulent act, and it is difficult to regard the debtor's remittance of cash as a gift.

It is difficult to find that there was an insolvent situation in view of the debtor's financial status, business assets, sales claims, and operating status at the time of fraudulent act. It is difficult to find that there was a mutual agreement between the debtor's intent to grant cash free of charge in consideration of the debtor's account transaction details in consideration of the relationship between debtor and beneficiary

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

(C)Revocation of fraudulent act 2015Na20042

Korea

jAA

August 13, 2015

August 27, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The contract on donation entered in the separate sheet concluded between the defendant and ChoB shall be revoked within the scope of KRW 130,881,01,010. The defendant shall pay to the plaintiff 130,881,010 with interest calculated at the rate of 5% per annum from the day following the day this judgment becomes final and conclusive to the day of full payment.

1. Basic facts

A. Tax claims against the Plaintiff’s ChoB

1) 조BB은 2003. 2. 7.경부터 2013. 8. 14.경까지 ○○시 ○○구 ○○동에서 'QQ정밀'이라는 상호로 제조업체를 운영하였는데, 종합소득금액으로 2008년도 귀속분 32,398,726원, 2009년도 귀속분 40,045,005원, 2010년도 귀속분 58，148,575원을 자진 신고하여, 종합소득세로 2008년도 귀속분 2,133,353원, 2009년도 귀속분 1,040,841원， 2010년도 귀속분 2,005,358원을 각 납부하였다.

2) On July 2013, the head of △△ District Tax Office, upon conducting a general consolidated investigation (tax investigation) for the year 2008 to 2010 for the year 2010, and upon underreporting the amount of global income tax evasion by underreporting the amount of income by appropriating excessive expenses without books and documentary evidence, on September 3, 2013, the Plaintiff-affiliated Tax Office determined the amount of additional tax for the difference between global income tax and global income tax paid by ChoB and global income tax paid by ChoB, 5,920,140 for the year 208 to 5,856,200 for the fiscal year 209, and 120,425,591 for the fiscal year 2010 to 120,591 for the fiscal year 30 September 30, 2013.

3) Accordingly, Article BB fails to pay value-added tax other than each of the above global income taxes, and the Plaintiff’s taxation claim at the time of filing the instant lawsuit reaches KRW 315,907,840, including additional dues.

(b) Transfer, etc. of money to the defendant by SectionB;

“B” has deposited the sales amount from February 2, 2010 to December 31, 2010 to the account in the name of the Defendant in the name of the Defendant, or deposited the sales amount of KRW 526,00,000,000 (hereinafter “the cash of this case”) into the account or check in the name of the Defendant, or deposited the sales amount of KRW 526,00,000 (hereinafter “the cash of this case”) into the account in the name of the Defendant, in the name of the Defendant, for a total of 20 times after receiving the sales amount from the transaction partner W, etc., which is the customer, from February 2, 2010 to December 31, 2010 (hereinafter “the act of this case’s transfer, etc.”), “the act of this case’

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff has a tax claim against ChoB in 2008 and 130,881,010 won (63,637,100 won in 2008 + 67,243,910 won in 2009 + 67,243,910 won in 209, and hereinafter referred to as "the global income tax of this case"). However, at the time of the act, such as the transfer of cash of this case to the EE bank due to the absence of any particular property other than deposit claims against the EE bank (the amount stated in the "affirmative property" in the list below), while the transfer of cash of this case was insolvent as described in the following excess status table, and the amount was donated to the defendant and deepened the state of insolvency.

Such a contract between B and the defendant constitutes a fraudulent act detrimental to the plaintiff, who is a general creditor, and thus, should be revoked within the scope of KRW 130,881,010, which is the amount of preserved claims, and the defendant should pay the above amount and delay damages to the plaintiff.

The debt excess status table (mark omitted)

B. Defendant’s assertion

1) Unlike the Plaintiff’s assertion, the transfer, etc. of cash in this case does not constitute a fraudulent act in which the act of the transfer, etc. of cash in this case either disposes of its own property or results in the excess of its obligation, on the ground that the active property exceeds 130,881,010 won as it owns high-priced machinery such as YY machine (public machinery) and other transport equipment and tools, and sales claims against the trader, etc., such as transfer of cash in this case.

2) 조BB이 피고에게 한 이 사건 현금의 송금 등 행위는，그 중 상당액이 다시 조BB의 예금계좌로 이체되거나 조BB이 QQ정밀을 운영하는데 필요한 운영자금 조달，기계매입，공과금 납부 등에 지출되었으므로, 이를 원고의 주장과 같은 책임재산의 처분행위인 '증여'라고 할 수 없다.

3) The instant global income tax was corrected and notified to ChoB immediately after September 3, 2013 as a result of the tax investigation, while the instant global income tax was corrected and notified to ChoB, and the instant act of remitting cash, etc. was committed from February 2, 2010 to December 31, 2010, much earlier than the instant tax amount, and the Defendant did not know that there was any overdue tax amount against ChoB, or that the instant act of remitting cash, etc. was detrimental to the creditors including the Plaintiff.

3. Determination

(a)the existence of preserved claims;

Tax liability is naturally established without any need to recognize the fact that the tax liability satisfies the requirements for taxation (see, e.g., Supreme Court Decision 2008Da84458, May 14, 2009).

Examining the facts acknowledged earlier in light of the aforementioned legal principles, the instant global income tax against ChoB was established when the taxable period expires pursuant to Article 21(1)1 of the Framework Act on National Taxes, and pursuant to Article 5(1) of the Income Tax Act, the taxable period of income tax is from January 1 to December 31, 2008. Of the instant global income tax, the portion in 2008 among the instant global income tax was established on December 31, 2008, and the portion in 2009 was respectively liable on December 31, 2009, and the act such as transfer of cash was performed during the period from February 2, 2010 to December 31, 2010, which was the date on which the liability for payment of the instant global income tax was established, so even if the Plaintiff’s global income tax claim under the instant global income tax becomes the preserved claim, and any such circumstance was not corrected and preserved on December 30, 2013.

In addition, the additional dues under Articles 21 and 22 of the National Tax Collection Act are the kind of incidental dues imposed as a meaning of interest in arrears if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment by the due date by the due date by the due date 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, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007) and the amount of the additional dues are determined (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007).

(b) the existence of fraudulent act and intent to commit suicide;

1) Whether a memberB’s insolvency is insolvent

A) The written evidence evidence Nos. 10 through 15 alone is insufficient to recognize that: (a) since the responsibility property of ChoB is not the Plaintiff’s claim as the Plaintiff’s claim, it is difficult to recognize that the active property of ChoB has deteriorated to the extent that the instant global income tax (negative) was unable to be paid or that the instant global income tax was in excess of the liability.

나) 오히려 을 제8호증의 기재에 변론 전체의 취지를 보태어 보면, QQ정밀의 재무상태는 2009. 12. 31. 기준으로 자본총계 378,751,352원，부채총계 64,734,473원이고, 2010. 12. 31. 기준으로 자본총계 295,542,472원，부채총계 49,286,363원으로 위 어느 시점에서도 순재산이 이 사건 종합소득세액 130,881,010원을 넘어서는 사실을 알 수 있을 뿐이다.

C) On the other hand, it can be sufficiently recognized that, on the other hand, evidence Nos. 16 through 19, evidence Nos. 3 through 5, and evidence Nos. 9-1 through 56, the whole purport of the pleadings are taken into account, and that, on the other hand, positive property of ChoB has exceeded the global income tax amount of this case.

① On June 2009, ChoB purchased from PP Co., Ltd. one of the YA machinery (acquisition cost of KRW 181,000,000) from YB, and had already paid the lease deposit of KRW 72,400,00 in total, KRW 35,23,954 in total, KRW 35,03,954 ( KRW 5,03,422 x7 months) as of February 2010, which began to engage in the act of remitting the cash of this case.

In this context, from August 3, 2009 to July 4, 2011, YB completely paid rent and eventually, YB owned by the above YB, and the above YB assessed heavy value of 140,000,000 won around June 2010 by the above YB, and around August 7, 2013 by the YB sold the above Y machinery in KRW 75,00,00,000 on AA machinery. As of February 2010, it is judged that the exchange value of YB held in relation to the above YM machinery is not equivalent to the above 72,40,000,000 won and the total rent paid for 35,233,294,000,000 won and the above YB assessed as 140,000 won.

② 또, 조BB은 2013^8. 7.경 범용선반 1대를 위 YY기계와 함께 AA기계에 15,000,000원에 매도하였으므로 2010년 2월 기준으로 위 범용선반의 재산가치를 그와 같은 금액으로 평가하는 데에 별다른 무리가 없다.

③ 조BB은 QQ정밀을 운영하는 동안 수시로 필요한 사무용 집기, 자동차，기계，공구류를 구입하여 이를 사업자산으로 보유하여 왔는데，그에 대한 증빙인 갑 제9호증의 1 내지 56의 각 세금계산서(단순한 소모품이나 원재료를 구입한 증빙이라고는 보이지 아니한다)상의 공급가액만 합산해 보아도 130,017,702원 상당에 이르므로，위 가액에 감가상각까지 충분히 감안하더라도 위 ①,②와 합쳐서 이 사건 종합소득세액을 납부하고도 남음이 있을 정도의 재산적 가치를 지니고 있었던 것으로 평가할 수 있다.

④ 조BB이 2010. 2. 2.부터 2010. 12. 31.까지 피고에게 송금 등 행위를 한 이 사건 현금액은 합계 526,000,000원이고，이는 조BB이 거래처인 ㈜WW 등으로부터 수시로 수령한 매출대금으로 마련된 자금임은 앞서 인정한 사실과 같은바, 여기에다가 그 당시는 QQ정밀이 한창 활발하게 가동되던 시기이고，조BB은 QQ정밀을 2013. 8. 14.경까지 정상적으로 운영하였던 점까지 더해 보면，이를 통하여 그 당시 조BB은 회수가능성이 높은 상당한 액수의 우량한 매출채권을 보유하고 있었음을 추단할 수 있다.

2) Whether a donation was made to the defendant

A) Relevant legal principles

The creditor who seeks revocation of a fraudulent act argues that the debtor's monetary payment to the beneficiary was a gift, and the beneficiary is arguing that it was received under other names, and this constitutes denial of the creditor's assertion, and in order to recognize the above monetary payment as a fraudulent act, it should be proved that the monetary payment constitutes a gift, and the burden of proof is on the part of the creditor's assertion of the fraudulent act (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007).

In order for a debtor to have established a donation contract with respect to money remitted to another person’s deposit account, it should be interpreted that, first of all, the debtor and the account holder have the intent to donate and grant such remitted money to the third person ultimately reverted to another person without compensation. The burden of proof is the creditor who asserts that such remittance is a fraudulent act subject to the obligee’s right of revocation. Meanwhile, in a case where money is transferred to another person’s deposit account, it may be based on a variety of legal causes. As such, barring any special circumstance, it cannot be readily concluded that the debtor consented or understood that a person with a certain personal relationship consented or understood to remit money to his/her own deposit account with the knowledge that the money is transferred to his/her own deposit account to avoid tracking the tax authorities, etc., or that the debtor actually consented to the de facto control of his/her deposit account for such purpose, barring any other special circumstance (see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012).

B) Legal nature of the act such as remittance of cash of this case

그러므로 살피건대，을 제7호증의 1, 2, 3의 각 기재에 변론 전체의 취지를 종합하 면, 피고는 이 사건 현금을 송금받기 이전부터 역으로 자신의 SS조합 계좌로부터 조BB의 EE은행 계좌로 100만 원 이상의 비교적 큰돈을 수시로 송금해 온 사실，또한 피고의 위 계좌에서 조BB이 운영한 QQ정밀과 관련된 건강보험료，국민연금，제세공과금，부가가치세 등이 인출되거나 조BB 개인의 대출금，카드대금 등이 상환되기도 한 사실을 인정할 수 있고，여기에 조BB과 피고가 부부 사이인 점，조BB이 실제로는 QQ정밀을 운영하면서 필요에 의해서 피고 명의의 계좌를 직접 사용・관리하였을 가능성을 배제할 수 없는 점，매수자금의 흐름 등을 감안할 때 피고 명의로 매수한 △△ △△군 △△읍 △△리 △△, △△-1，△△-7 각 토지 역시 실제로는 조BB의 소유이지만 피고 앞으로 명의만 신탁된 것이라고 볼 여지도 없지 않은 점에 비추어 보면, 앞서 인정한 사실들만으로는 이 사건 현금의 송금 등 행위 당시 객관적으로 조BB과 피고 사이에 이 사건 현금을 피고에게 무상 공여한다는 의사의 합치가 있었다고 추인하기 부족하고，달리 이를 인정할 만한 증거가 없다.

3) Whether the defendant was maliciously guilty

A) Relevant legal principles

In a lawsuit seeking revocation of a fraudulent act, a creditor who asserts the revocation of the fraudulent act bears the burden of proving that the debtor is a bad faith, but the beneficiary or subsequent purchaser is not a creditor, but a creditor bears the burden of proving that the debtor is a bad faith (see, e.g., Supreme Court Decision 2007Da18218, Jul. 12, 2007).

On the other hand, in revocation of a fraudulent act, the author argues that the debtor's act of disposal of his/her property reduces the amount of assets, thereby causing a shortage of joint security for claims or causing a lack of joint security already in the state of shortage, thereby making it impossible for the creditor to fully satisfy his/her claims (see, e.g., Supreme Court Decision 9Da29916, Nov. 22, 199). In principle, when determining the debtor's intention of deception, it should be based on the circumstances at the time of the fraudulent act (see, e.g., Supreme Court Decision 9Da31940, Dec. 8, 2000).

B) Determination

However, as seen above, it is reasonable to view that: (a) the act of remitting cash in this case, which is a small property of ChoB, has come to exceed the obligation of global income tax in this case; (b) as such, it cannot be said that ChoB’s intention was proved; and (c) as long as the intention of the ChoB was not proved, it is difficult to view that the Defendant is not liable to prove the fact that he was the bona fide good faith to reverse such presumption.

앞서 본 사실관계와 갑 제4호증，을 제7호증의 1，2, 제10호증의 1，2의 각 기재에 변론 전체의 취지를 보태어 알 수 있는 다음과 같은 사정들，즉 ① 이 사건 종합소득세는 세무조사의 결과로 2013. 9. 3.경에야 뒤늦게 조BB에게 경정・고지된 반면，이 사건 현금의 송금 등 행위는 그보다 훨씬 앞선 2010. 2. 2.부터 2010. 12. 31.에 이루어 진 점，② 조BB과 피고 상호간에는 이 사건 현금의 송금 등 행위 이전부터 은행계좌를 통한 자금이체 거래가 주기적・반복적으로 이루어져 온 점, ③ 조BB이 2003. 2. 7. 경 QQ정밀의 운영을 시작한 이래로 2008년도분 종합소득세 신고 이전까지 납세의무를 위반하여 추후 세금을 추징당한 전력은 없는 것으로 보이는 점, ④ 피고가 남편인 조BB과 함께 QQ정밀의 운영이나 납세 업무에 관여하였다거나 QQ정밀의 재무상태를 파악하고 있었다고 볼 증거가 없는 점, ⑤ 원고가 조BB과 피고를 조세범처벌법위반 혐의로 고소하였으나, 검찰에서 각 혐의없음(증거불충분)의 불기소처분을 받은 점에 비추어 보면，이 사건 현금의 송금 등 행위 당시 피고는 조BB이 향후 이 사건 종합소득세를 추가로 부담하게 될 것을 알면서 사해의사로써 미리 피고에게 위와 같은 송금 등 행위를 한다는 사실을 몰랐다고 봄이 타당하다.

C. Sub-decision

Therefore, it is reasonable to view that the act of ChoB's remittance, etc. of the cash in this case does not constitute a fraudulent act detrimental to the general creditor's property, but it does not constitute a fraudulent act detrimental to the general creditor's property such as the plaintiff, etc., and that the defendant was unaware of the conduct of the remittance, etc. in this case. Therefore, the plaintiff's assertion is without merit as to the remainder of the issue.

4. Conclusion

Therefore, the plaintiff's claim of this case can be dismissed due to the lack of reason, and the judgment of the court of first instance is just in this conclusion, and the plaintiff's appeal is dismissed as it is without reason, and it is so decided as per Disposition.