The act of paying the transfer price of current property to the wife in excess of debt must be revoked by fraudulent act.

The act of paying the transfer price of current property to the wife in excess of debt must be revoked by fraudulent act.

Article 35 of the National Tax Collection Act

Daegu District Court-2015-Annex-205820 ( June 24, 2016)

Korea

LAA

May 13, 2016

6.24

1. Facts of recognition;

A. On September 9, 201, OA sold real estate (hereinafter “instant real estate”) such as ○○○○○○○-gun, ○○○○○○○-gun, ○○○○○○○, 1584 square meters and its ground buildings, etc., and completed the registration of ownership transfer in the name of a buyer on November 8, 201.

B. The Defendant, who is a legal spouse of the OraA, is the father-dong of this case from the buyer on November 8, 2011.

The money received KRW 257,00,000 as a check or as a remittance to his financial account (hereinafter referred to as “the donation of this case”).

C. Ora has not reported and paid the transfer income tax following the transfer of the instant real estate (hereinafter “the transfer income tax of this case”).

D. Accordingly, on March 31, 2014, the Nam Daegu Tax Office, under the Plaintiff’s control, notified Austria to pay KRW 373,137,540 of the transfer income tax of the instant case until March 31, 2014. However, Austria did not pay it until now. As of September 2, 2015, the amount in arrears of the transfer income tax of the instant case of Austria as of September 2, 2015, is KRW 447,018,760 [principal tax + KRW 373,137,540 + additional dues + KRW 73,81,220];

E. OrA’s gift of this case, including that there is no active property other than the real estate sale price.

It was in excess of debt at the time, and it is insolvent such as there is no other property at present.

[Reasons for Recognition] Unsatisfy, Gap 1 to 6

2. Determination

(a)the existence of preserved claims;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that could 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 legal relations that would be the basis for the formation of the claim, and that the claim would be established in the near future, and where a claim has been created as a result of the realization of the possibility in the near future, the claim may also become a preserved claim of the obligee’s right of revocation in the near future. Such legal principles apply to a claim for taxation, even if a claim has not yet been established at the time of a fraudulent act, where a legal relationship that serves as the basis for the establishment of the claim was created, and where a claim was established specifically through the procedure of taxation such as a high probability of establishing the claim in the near future.

In addition, when a creditor exercises his/her right of revocation, he/she cannot exercise his/her right of revocation in excess of his/her own claim amount in principle, and the creditor's claim amount includes the interest or delay damages incurred after the fraudulent act and the time of closing argument in fact-finding proceedings. Meanwhile, the additional dues under Article 21 (1) and (2) of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of the interest on unpaid portion 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 without the due date of the person having the right of taxation, the amount naturally accrued and the amount thereof is also determined by the above provision. Therefore, as long as a transfer income tax claim is recognized as a preserved claim of the right of revocation, the amount of the transfer income tax includes the additional dues incurred after the fraudulent act and the time of closing argument in fact-finding proceedings (see, e.g., Supreme Court Decisions 200Da3782

The obligation to pay the transfer income tax of this case to OA on the transfer of the real property of this case is abstractly

As the instant gift was made after the establishment, the said liability to pay capital gains tax constitutes the basic legal relationship equivalent to the amount of KRW 447,018,760, which has been actually imposed after the said liability. As seen earlier, in light of the fact that the Plaintiff did not report and pay capital gains tax, and the Plaintiff was imposed capital gains tax by determining the payment deadline to OrA on March 31, 2014, the said liability to pay capital gains tax was highly probable as to the establishment of the instant claim for capital gains tax, based on the said basic legal relationship near the point of time of the instant donation, in the near the point of time of the instant donation, as well as on the fact that the instant claim for capital gains tax was actually established in the nearest future, and thus its probability has been realized, the instant claim for capital gains tax

(b) The intention to commit fraudulent acts and to injure himself;

(1) If the debtor donated his/her property to another person, resulting in excess of his/her obligation, special

Unless there are special circumstances, such an act becomes a fraudulent act.

(2) The defendant alleged that the above 257,00,000 won was paid by the buyer in the above manner, but it was not a donation since it delivered or returned the above money to OA. However, the evidence submitted by the defendant alone is insufficient to view that the defendant delivered or returned the above money to OA (the defendant appears to have known that OA, her husband, was subject to capital gains tax as a matter of course by selling the real estate of this case, and therefore, it is sufficient to view that the defendant received the above money from the buyer and received it as a donation.)

C. Sub-committee

The gift of this case against the defendant of OA shall be revoked as a fraudulent act detrimental to the general creditor such as the plaintiff, etc., and the defendant shall be obligated to pay to the plaintiff 257,000,000 won and damages for delay at the rate of 5% per annum under the Civil Act from the day following the day when the judgment became final to the day when the full payment is made.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.