Whether the donation of real estate purchase price constitutes a fraudulent act

It is very rare that a donation without any consideration to Si lodging is a donation of a large amount of money due to other factual relations.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

1. The plaintiff's claim is dismissed.

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

The contract of donation concluded on April 26, 2006 between Defendant Hong Pung Pung-do shall be revoked within the limit of KRW 147,247,90,00, and the Defendant shall pay to the Plaintiff 147,247,900 with interest of KRW 5% per annum from the day following the day when the judgment of this case became final to the day of complete payment.

1. Basic facts

A. On April 7, 2006, Hong-si, ○○○○-dong, 20-○○-dong, 166.9 square meters (hereinafter “the instant real estate”) transferred the instant real estate to ○○○-dong, 20-○○-dong, 166.9 square meters to 1,000,000 won. As to this, the director of the tax office of Nam-gu, the Plaintiff affiliated with the Plaintiff, determined the transfer income tax to 135,089,870 won on July 9, 2007 and notified that the payment should be made by July 31, 2007, but the Hong-si, ○○-dong, did not pay it up to now.

B. The Plaintiff received 200,000,000 won, respectively, as the down payment and the intermediate payment on April 7, 2006, as to KRW 480,000,000, excluding the buyer’s debt succession amount of KRW 120,000,00 from the purchase price of the instant real estate.

C. On April 26, 2006, the Defendant (the time-to-date of Hong Kong) purchased 13/26 of the ownership shares of the Daegu ○○○-dong 588-○○-dong 338 square meters and the respective shares of the building on its ground from four other persons (hereinafter “the instant act of payment of the purchase price”). On April 25, 2006, the purchase price was the method of transferring the checks of KRW 170,000,000 to the seller’s account on May 26, 2006 (hereinafter “the instant act of payment of the purchase price”).

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 14 (including virtual numbers), the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

On April 26, 2006, the Defendant entered into a sales contract with the 170,000,000 square meters of land and 13/26 of each share of ownership in the building on ○○○-dong 588-○○-dong 338,000 square meters of land, and the 170,000,000 won on the same day was donated to the Defendant, and the Defendant had the Defendant pay the purchase amount. The Red ○○ was well aware of the fact that the transfer of the instant real property at that time would be subject to the imposition of capital gains tax by gifting KRW 170,00,00 to the Defendant, and thus, it constitutes a fraudulent act detrimental to the Plaintiff, a tax claim holder. Accordingly, the Plaintiff revoked the donation contract between Hong ○-dong and the Defendant on April 26, 2006 within the scope of national tax claims, and further claimed compensation equivalent to the amount to the Defendant as restitution.

B. Defendant’s assertion

1) Around November 18, 1994, the Defendant collected money from the Defendant’s real estate’s husband to the Defendant’s husband. However, around 197, the Defendant’s act of disposal in this case was conducted on April 25, 2006 in order to repay the principal and interest of the leased bonds.

2) In addition, the Defendant did not know at all whether ○○○○ had an intention to default capital gains tax in selling the instant real estate, and whether ○○○○ had an intention to default capital gains tax.

3. Determination

(a)the existence of preserved claims;

1) Although it is required that a claim protected by the obligee’s right of revocation was, in principle, incurred prior to the commission of an act that can be viewed as a fraudulent act, the legal relationship, which is the basis of establishment of the claim, has already occurred at the time of the fraudulent act, and where a claim has been created by the realization of the probability in the near future, such claim may also become a preserved claim (see Supreme Court Decision 2004Da40955, Nov. 12, 2004).

2) The income tax on the gains from transfer of assets is a tax to be paid by preliminary return and payment, and the liability for payment is abstractly established on the last day of the month in which the amount constituting the tax base for transfer of assets occurs (see, e.g., Supreme Court Decision 88Nu2519, Oct. 13, 1989).

3) The obligation to pay capital gains tax on the transfer of the instant real estate by Hong ○○ was established as of April 30, 2006, which was the last day of the month in which the Plaintiff received the balance of the instant real estate, namely, at the end of the month in which the instant real estate was disposed of. Thus, it cannot be deemed that the Plaintiff had already occurred prior to the instant disposal. However, there was a high probability that the sales contract on the instant real estate had already been concluded at the time of the instant disposal, which was a legal relationship which serves as the basis for establishing the liability to pay capital gains tax, and that the transfer income tax on the transfer of the instant real estate has been established in the near future, and as such, since the possibility has been realized and the transfer income tax has been imposed and confirmed, the Plaintiff’s obligation on Hong ○○ can also be the preserved claim

B. Whether the fraudulent act was established

1) With regard to the assertion that a creditor seeking revocation of a fraudulent act is a gift to a beneficiary of an obligor, when the beneficiary contests that it was received as a repayment of the existing debt, this constitutes denial of creditor's assertion, and thus, it should be proved that the said monetary payment constitutes a gift to be recognized as a fraudulent act, or that there is an intent to harm the creditor, only if it is proved that the said monetary payment constitutes a gift to be recognized as a fraudulent act, and the burden of proof therefor is on the part of the claimant's assertion of a fraudulent act (see Supreme Court Decision 2005Da28686, May 31, 2007).

2) As to the instant case, the Defendant’s check of KRW 170,00,00 in total face value, which was deposited and issued from the Red ○○○○ Account, was transferred to the account of the seller of real estate purchased by the Defendant on April 26, 2006. However, such fact alone is insufficient to recognize that Hong ○○ donated the said money to the Defendant, and there is no other evidence to recognize otherwise (the gift of the said money to the Defendant, who is an accommodation, without any consideration).

Rather, according to the witness's testimony, since the defendant lent part of the money that the defendant left and managed to the same ○○'s her mother's her mother's her mother's her mother's her mother's her mother's her mother's her mother's her mother's her mother's her mother's her mother's her mother's her mother's her mother, the defendant received 170,000,000 won for the repayment of the principal and interest of the loan and delivered it to the defendant, and the defendant was used for the payment of the real estate purchase price. Thus, the disposition of this case is not made by the defendant, but made by the defendant, who is the her husband's her mother's her mother's her mother 's her mother 's her mother 's her mother 's 's her mother 's her mother 's her mother 's her mother.

Therefore, the plaintiff's claim of this case seeking cancellation of a self-donation contract and restoration of the original status on April 26, 2006 between Hong Pung Pung Pung and the defendant on the premise that Hong Pung Pung donated the defendant with a direct donation of KRW 170,000,000 to the defendant is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.