Seoul Central District Court 201 Gohap100812 ( October 15, 2012)

It shall be deemed that there is a significant and apparent defect in the taxation, and it shall be deemed that it is void as a matter of course.

In a case where it is evident that the factual relations of a certain legal relationship or fact that is not subject to taxation should be accurately examined, it cannot be deemed that the taxation disposition that misleads the misunderstanding of the taxation requirement theory cannot be deemed to be null and void merely because the defect is obviously apparent even if it is serious.

2012Na23704 Revocation of Fraudulent Act

Korea

XX

Seoul Central District Court Decision 2011Gahap100812 Decided February 15, 2012

May 17, 2012

June 14, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

A. The contract of donation of KRW 000, which was concluded on April 25, 2008 between the defendant and the non-party KimA, and the contract of donation of KRW 000,000, which was concluded on September 19, 2008, shall be revoked within the limit of KRW 000.

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

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows, except where the defendant added the following judgments as to the matters asserted in the trial, and thus, it is also accepted by the main sentence of Article 420 of the Civil Procedure Act.

2. Additional matters to be determined;

A. The defendant's argument

The instant real estate was purchased by the Defendant in the name of KimA for wife KimA in preparation for the old age, and the instant real estate on December 30, 2002, which was at the time of the Defendant’s purchase, was not forest land but land land registered and constructed on the land cadastre in the early 1970 early 200 when the 1970 public council developed with the permission of reclamation. The Defendant changed the instant real estate into the site for the entire housing after purchase. Accordingly, it is unreasonable to impose capital gains tax by recognizing the instant real estate as the site for business and applying the heavy taxation rate of 60% on the land for non-business use.

In light of the fact that the Defendant, after completing the site creation of the instant real estate in September 2007, established a plan for the construction of electric source housing around September 2007, but the plan was inevitable to dispose of the instant real estate due to the lack of funds due to the government’s excessive disposition of real estate transaction suppression policy, the Plaintiff imposed capital gains tax on which the said heavy taxation rate was applied, and the real estate heavy taxation policy, which was implemented by the Plaintiff, was found to have been eventually failed, and the Defendant faithfully performed its duty and faithfully without paying taxes for 64 years, capital gains tax imposed on the instant real estate shall be limited to a legitimate amount.

B. Determination

The Defendant seems to have asserted the validity of the instant taxation disposition, which was the basis of the Plaintiff’s claim for capital gains tax, as the preserved claim for revocation of fraudulent act.

First of all, the defendant recognized the fact that KimA did not take the procedure of objection, such as seeking a revocation or modification regarding the instant taxation disposition, and it cannot be found that the instant taxation disposition was revoked due to any other reason.

Furthermore, this case’s taxation disposition, which was rendered to a person who does not have any factual basis, such as legal relations, income, or act, which are subject to taxation, is significant and apparent, but in case where there are objective circumstances that make it possible to mislead him as to any legal relations or factual relation which is not subject to taxation, and where it can only be clarified by accurately investigating the factual relation, it cannot be said that the defect is apparent even if it is serious, and thus, it cannot be deemed that the unlawful taxation disposition that misleads the person who is subject to taxation, as such, is null and void as a matter of course (see Supreme Court Decision 2001Du7268, Sept. 4, 2002).

In light of the above legal principles, even if considering all the circumstances alleged by the defendant, it is difficult to regard the plaintiff's tax disposition of this case as void as a matter of course due to the plaintiff's significant and apparent defect, and there is no other evidence sufficient to recognize it. Accordingly, the defendant'

3. Conclusion

Since the judgment of the first instance is justifiable, the defendant's appeal is dismissed as it is groundless.