The amount of capital gains tax shall include additional charges and increased additional charges.

If capital gains tax claims are recognized as preserved bonds of obligee's right of revocation, the amount of capital gains tax claims shall include additional charges and increased additional charges incurred from the fraudulent act to the time of closing argument in fact-finding proceedings.

2012Na32005 Revocation of Fraudulent Act

Korea

GangwonA et al.

Seoul Eastern District Court Decision 201Gahap17555 Decided March 27, 2012

November 20, 2012

January 17, 2013

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

(a) 1) Revocation of the gift agreement set out in the attached Table 1 concluded between Defendant Kang and KangB within the limit of KRW 000,000;

2) Defendant Gangnam-A shall pay to the Plaintiff 00 won and 5% interest per annum with respect to the Plaintiff at the rate of 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

(b) 1) Revocation of the gift agreement set out in the attached Table 2, which is concluded between Defendant Gangnam and Gangwon, within the limit of KRW 000.

2) Defendant Gangnam-CC shall pay to the Plaintiff 00 won and 5% interest per annum with respect to the Plaintiff at the rate of 5% per annum from the day immediately following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiff's claims against the defendants are dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is that "GB paid KRW 000 from the balance to UD on July 7, 2009" in Section 20 of Section 3 of the judgment of the court of first instance, and Section B paid KRW 000 from the balance to DD on July 7, 2009, "GB paid KRW 000 cashier's checks from the balance paid to DD on July 7, 2009, and the defendants paid KRW 00,000 in face value to the balance, and the judgment is the same as the reasoning for the judgment of the court of first instance, except for the addition of the judgment as stated below 2.

2. Additional matters to be determined;

A. Formation of preserved claims

The Defendants asserted that, among the preserved claims against debtor riverB claimed by the Plaintiff, additional dues and aggravated additional dues exceeding KRW 000 are not naturally anticipated, and that the occurrence thereof is not likely, and this part of the preservation claims cannot be seen as the secured claims. However, additional dues and increased additional dues provided for in Articles 21 and 22 of the National Tax Number Act, if national taxes are not paid until the due date, are the kind of incidental dues imposed in the meaning of interest on the unpaid portion, 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 Articles 21 and 22 of the same Act (Supreme Court Decision 200Du2013 Decided September 22, 200), and as seen earlier, insofar as the transfer income tax claim of this case is recognized as preserved claims by the due date by the right of revocation by the right of revocation, the amount of the transfer income tax shall also be deemed as including additional dues and increased additional dues accrued until the due date of the closure at the fact-finding proceedings (Supreme Court Decision 20076Da63636.

(b) Excess of the liabilities of the Gangwon;

1) The defendants' assertion

GangnamB loaned 00 won to EEE Korea (Representative F) on August 2, 2006, with the interest rate of 3.5% per month, and with the due date on November 2 of the same year, respectively. The highest interest rate under the Interest Limitation Act was 30% per annum on July 6, 2009 until July 6, 2009, which was the date of the initial fraudulent act of this case (i.e., KRW 000 x 30% x 28/12) and the total principal and interest amount was 000 won at that time. In addition, DB was 00 won with the introduction of GG on April 28, 2003, and thus, it could not be deemed that the loan was 00 won with the debt of KRW 00 on January 30, 200 + the debt amount of KRW 00 on the date of the above fraudulent act (i.e., the debt amount of KRW 00.

2) Determination

In order to become a fraudulent act, the debtor's act of disposal of the assets causes a decrease in the total assets of the debtor, and that is, the debtor's small assets should be more active assets than the debtor's positive assets at the time of the debtor's act of disposal of the assets, and even if the total assets of the debtor's active assets exceed the amount of debts, the calculation of the active assets should be excluded, unless there are other special circumstances. If the debtor's active assets are claims, it should be reasonably determined whether there is certainty to receive repayment, and if the assets are claims, it should be included in the active assets, and it should not be included in the active assets (see Supreme Court Decision 2004Da58963, Jan. 28, 2005). Thus, since the debtor's active assets in this case were not sufficient to acknowledge the defendants' respective claims for repayment, each of the above three claims for repayment should not be easily asserted, and even if there is no other evidence to support the defendants' respective claims for repayment, each of the above 200-B.

C. The nature of money paid to the UO

1) The defendants' assertion

Of the money paid as the purchase price of the instant real estate by GangwonB, the cashier’s checks of KRW 000 were deposited in the account of UDD on July 7, 2009, and it was not directly issued to the GangwonB due DD on July 7, 2009, but it was sold on June 18, 2009, U.S. O.O.O. of the building located in Songdo-Eup, Do-do-Eup at 000 won, and the checks issued as part payments from the above buyers on July 6, 200, and the Defendants’ U.S.’ real estate (the same Ri, 000 and the above ground buildings)’ obligation to purchase the instant real estate were not paid on behalf of KangB. The Defendants did not request that DB pay KRW 00,000,000 out of the purchase price of the said real estate in cash, and the Defendants did not request DB-21 and 21,000,000 won.

2) Determination

As shown in the above argument of the Defendants, the summary of the witness D's testimony from 2007 to 2007, and from 2007, he borrowed 200,000 won to DaB, and at the request of the National Tax Service, he stated that DoB was paid 00 won as a check at the face value paid as the purchase price of the instant real estate. However, the said check was not received from DoB, but was sold to OB, and the witness was collected as part of the purchase price. The witness sold the above real estate (such as 00 and 000 land and above ground buildings) to the Defendants, and received 200 Does' testimony from OB to 200 Does' testimony, and it was hard to find that 200 Does' testimony was delivered to OBs' testimony, and that 200 Does' testimony was delivered to OBs' testimony, including 300 Does' testimony.

(d) tax credit imposed on Gangwon;

1) The defendants' assertion

The Gangnam Tax Office of the Plaintiff under the premise that the Defendant Gangwon-do donated the money to the instant fraudulent act from Gangwon-do, and around September 25, 2012, notified the said Defendant of the notice of imposition of gift tax of KRW 000,000, and the Defendant Gangnam-CC also seems to impose gift tax equivalent to the same amount. The Defendants should be revoked as a fraudulent act and the amount equivalent to the said donation should be restored to the original state. However, if the Plaintiff imposes gift tax on the Defendants, the Defendants should bear both restitution due to cancellation of the act and restitution of the amount equivalent to the said gift tax. Accordingly, the amount equivalent to the said gift tax should be deducted from the amount of restitution of the Defendants.

2) Determination

In cancelling the fraudulent act committed in the form of donation and ordering the restoration of the original state, the amount of gift tax and the amount of acquisition tax imposed on the beneficiary are not to be calculated by deducting the amount of gift tax imposed on the beneficiary (Supreme Court Decision 2003Da40286 Decided December 12, 2003), and it is not reasonable for the defendants to dispute other opinions.

3. Conclusion

Since the judgment of the first instance is justifiable, the appeal of the defendant frame is dismissed as it is without merit.