Whether it constitutes a fraudulent act

It is subject to revocation of fraudulent act if the only real estate of the defaulted taxpayer is exchanged to the spouse by entering into an exchange contract.

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

2015 Gohap103 Revocation of Fraudulent Act

Korea

○ ○

September 22, 2016

October 27, 2016

1. On May 2012, 2012 regarding each real estate listed in the separate sheet Nos. 4 and 5 between the Defendant and Nonparty Kim ○○.

14.The conclusion of the contract of gift shall be revoked within the limit of 106,417,090 won.

2. The defendant shall pay to the plaintiff KRW 106,417,090 and shall be repaid to the plaintiff from the day immediately after the day this judgment became final and conclusive.

By the day, 5% interest per annum shall be paid.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. On May 14, 2012, Kim ○ entered into a real estate exchange agreement with Hong○ and with the content that each of the real estate listed in [Attachment List 1, 2, and 3 (hereinafter referred to as “suspected real estate”) and each of the real estate listed in [Attachment List 4 and 5 (hereinafter referred to as “each of the instant real estate”) owned by Red○○ was set at KRW 650,000,000 for exchange value.

B. After May 14, 2012, Kim○-○ donated each of the instant real estate to the Defendant, who is his wife, from Hong○○ on or around May 14, 2012 (hereinafter “instant gift agreement”); on May 24, 2012, the registration of ownership transfer was completed in the name of the Defendant on each of the instant real estate; and on July 2, 2012, the registration of ownership transfer was completed in the name of Hong○-○ on each of the instant real estate.

C. On February 4, 2014, the director of the tax office affiliated with the Plaintiff notified the payment deadline for the payment of KRW 90,644,90 for the transfer income tax for the year 2012 on the ground of the above exchange contract with the Kim○○ on February 28, 2014, and the payment deadline for the amount of KRW 106,417,090 for the amount of delinquent local taxes as of March 18, 2015 was not paid by Kim○○.

D. On April 30, 2009, the registration of creation of a mortgage (hereinafter referred to as the "mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage (hereinafter referred to as the "mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage), was cancelled on May 24, 2012 immediately after the registration of establishment of ownership was completed, and the secured debt amount of the mortgage-backed mortgage was KRW 267 million at the time of cancellation." Meanwhile, at the time of the donation contract of this case, Kim ○-○ was obligated to complete the registration of establishment of a mortgage-mortgage-mortgage-mortgage-based real estate to Hong○○○ on the other hand, while there was no property other than each of the real estate of this case, due to the above exchange contract-mortgage-mortgage-mortgage-mortgage

[Ground of recognition] Facts without dispute, Gap 1-9, 11 evidence, the purport of the whole pleadings

2. Determination

A. Formation of preserved claims

1) In principle, a claim that can be protected by the obligee’s right of revocation needs to be deemed as a fraudulent act. However, 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 for the establishment of the claim, and that the claim should be established in the near future in the near future. In a case where a claim has been created by the realization of its identity in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2004Da40955, Nov. 12, 2004).

Meanwhile, the obligation to pay capital gains tax is naturally established by law without any separate procedure of the tax authority or the taxpayer on the last day of the month in which the amount that serves as the tax base of capital gains tax occurs (Article 21(2)2 of the Framework Act on National Taxes). The additional national tax is a kind of incidental tax imposed as the intention of interest in arrears for unpaid portion, and the additional dues accrued after the fraudulent act and until the closing of argument in fact-finding proceedings are also included in preserved bonds (referring to, referring to, etc., Supreme Court Decision 2006Da66753 Decided June 29

According to the above facts, on May 31, 2012, the last day of the month to which the registration date of each of the instant real estate belongs, acquired by Kim○-si in return for the exchange of real estate at Kim○-si.

Along with the formation of the gift contract of this case, the Plaintiff’s prior to the donation contract of this case is established.

As an exchange contract, which serves as the basis for the taxation claim against Kim ○, was established, and there was a high probability that additional taxes will be notified if the circumstances were revealed in the event of failure to file a return of capital gains tax, it was highly probable that the relevant tax claims will accrue in the near future. In fact, the Plaintiff’s taxation claim against Kim ○ becomes a preserved claim for the obligee’s right of revocation, since the possibility was realized by notifying the transfer income tax as above to Kim○○, thereby establishing a taxation claim.

2) As to this, the Defendant asserts to the effect that, even though the real estate listed in paragraph (2) of the attached Table No. 2 among the real estate in Permitted City falls under one house for one household as prescribed by the Income Tax Act, the transfer income tax was imposed on the entire real estate listed in paragraph (1) of the attached Table No. 1, including the above land, and thus, the transfer income tax is imposed on Kim ○○ was imposed on the purport that the defect is significant and apparent and invalid. As long as the taxation disposition cannot be deemed null and void as it is reasonable, even if there are any unlawful grounds that can be revoked in the taxation disposition, the administrative disposition is valid until it is lawfully revoked by the fair and administrative act or executory power (see, e.g., Supreme Court Decision 9Da20179, Aug. 20, 199), the effect of the taxation disposition in civil procedure cannot be denied (see, e.g., Supreme Court Decision 9Da20179, Aug. 20, 199).

On the other hand, the evidence submitted by the Defendant or the circumstance alleged by the Defendant alone is insufficient to deem that there is a significant and apparent defect in the Plaintiff’s imposition disposition of capital gains tax on Kim○○, and there is no other evidence to acknowledge it. Rather, considering the computation details of capital gains tax on Kim○, which can be known by the evidence as seen earlier, the Plaintiff excluded the real estate and the site as indicated in paragraph (2) of the attached Table from the real estate and the site thereof, and imposed capital gains tax only on the real estate and the site

B. Establishment of fraudulent act

The debtor's act of selling real estate, which is the only property of the debtor, and replacing it with or transferring it to another person without compensation, becomes a fraudulent act against the creditor, barring special circumstances. Thus, the debtor's intent of deception is presumed to exist, and the burden of proof that the purchaser or the transferee did not maliciously exist is the beneficiary (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001

As seen earlier, in a situation where Kim○ may be deemed to have no particular property other than each of the instant real estate, there was an excess of the obligation of Kim○○ by transferring each of the instant real estate to the Defendant, one’s wife, and thus, the instant donation agreement constitutes a fraudulent act detrimental to the Plaintiff, who is the obligee (see Supreme Court Decision 2002Da69358, Mar. 25, 2004; Supreme Court Decision 2002Da69358, Mar. 25, 2004; Supreme Court Decision 2002Da69358, Mar. 25, 2004; and further, the Defendant, the beneficiary, is presumed to have been aware of the fact that the shortage of joint security would result in the occurrence of shortage of

Therefore, barring any special circumstance, the Plaintiff may exercise the right of revocation against the Defendant and seek restitution.

(c) Methods of reinstatement and scope of revocation of fraudulent act;

In a case where the establishment registration of a mortgage was cancelled due to repayment, etc. after a fraudulent act was committed with respect to a real estate on which the right of revocation was established, revocation of a fraudulent act and ordering the restoration of the real estate itself to the extent that the portion which was not originally secured by the general creditors was restored to the portion which was not jointly secured by the general creditors. Thus, inasmuch as the value of the real estate is contrary to the fairness and fairness, the fraudulent act may be cancelled and the compensation for the value of the real estate may be claimed only within the extent of the balance remaining after deducting the secured amount from the secured amount (see, e.g., Supreme Court Decision 2001Da33734, Dec. 27, 2001). Meanwhile, when the creditor exercises the right of revocation, in principle, he/she may not exercise the right of revocation in excess of his/her claim, and in this case, the amount of the creditor's claim includes the interest or delay damages that occurred from the time of the closure of pleadings at the

In light of the above legal principles, since the registration of creation of a new mortgage of this case, which was completed at the time of the instant donation contract, was cancelled after the instant donation contract, the instant donation contract should be cancelled within the extent that the amount calculated by deducting the secured debt amount of the instant collateral security from the value as at the date of the closing of argument of each of the instant real estate at the time of the instant pleadings, and the restoration to the original state shall be made by means of

Furthermore, as seen earlier, with respect to the scope of compensation for value, the value of each of the instant real estate at the time of the instant donation contract is KRW 650 million, and there is no other evidence to deem that the value has changed until the date of closing of argument in the instant case. Thus, the joint collateral value of each of the instant real estate after deducting KRW 267 million, which is the secured debt amount of the instant right to collateral security, is KRW 383 million, and according to the evidence evidence No. 9, the tax claim amount as of March 28, 2016, which is close to the date of closing of argument in the instant case, is KRW 119,469,850. As of the date of closing of argument in the instant case, it is reasonable to deem that the said joint collateral value of the Plaintiff exceeds a tax claim against Kim○○ as of the date of closing of argument in the instant case. Accordingly, the cancellation of the instant donation contract and compensation for its restoration should be limited to KRW 106,417,90

Therefore, the contract of donation of this case concluded between the defendant and Kim ○ shall be revoked within the limit of 106,417,090 won, and the defendant shall be obligated to pay to the plaintiff 106,417,090 won and damages for delay calculated by the rate of 5% per annum under the Civil Act from the day following the day when the judgment is finalized to the day when the payment is complete.

3. Conclusion

The plaintiff's claim is justified and accepted.