Whether the donation of real estate to the wife constitutes fraudulent act

Although the debtor's active property (donation) was disposed of, it exceeds the small property, such gift contract cannot be deemed a fraudulent act.

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.

1. The gift contract concluded on January 24, 2006 with respect to the real estate listed in the separate sheet between the defendant and Kim Jong-ho (hereinafter "the apartment of this case") shall be revoked.

2. The defendant shall implement the procedure for the registration of cancellation of ownership transfer registration, which was completed on January 25, 2006 by the Busan District Court on the apartment of this case to Kim Ho-ho.

1. Basic facts

A. Formation of a taxation claim

(1) From February 1, 1997, Kim ○ has been engaged in the wholesale business of drugs in the name of "○○○○-dong, Busan, ○○○○-30." From 2001 to 2002, ○○ Pharmaceutical Co., Ltd. (hereinafter referred to as "○○ Pharmaceutical Co., Ltd.") (hereinafter referred to as "○○ Pharmaceutical Co., Ltd.") received a processed purchase tax invoice and filed a tax return accordingly.

(2) From December 2006 to April 2007, the Plaintiff’s ○○ Tax Office confirmed that the sales tax invoice was issued to Kim○-ho without real trade, and around August 6, 2007, issued the sales tax invoice for the year 16,436,380,24,300,960 for the second period of value-added tax, for the second period of value-added tax, 31,576,490,2 period of tax, 168,40, 149,57,050, global income tax for the year 2001, and global income tax for the year 149,57,050, 126,171,50, and 364,75,750, and 408,081, including the global income tax for the year 202, 207, 2008.

B. Divorce between the Kim○ and the Defendant’s donation contract and agreement

(1) On January 24, 2006, Kim ○ entered into a contract to donate the apartment of this case, which is the only real estate, to the Defendant, who is his wife (hereinafter referred to as the “the donation contract of this case”). Accordingly, on January 25, 2006, he completed the registration of ownership transfer under the name of the Defendant. Meanwhile, on the other hand, on June 30, 2001, the registration of ownership transfer was completed, with respect to the apartment of this case, 210 million won with respect to the maximum debt amount, 10 million won with each debtor Kim ○-ho and the secured debt amount per November 14, 2002, and ○○ bank, Inc., the secured debt registration was completed.

(2) On October 19, 2007, the Kim ○ and the defendant shared an agreement.

[Grounds for recognition] Gap 1 to 5, 7 (including paper numbers), the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff asserts that the gift contract of this case entered into between Kim Ho-ho and the defendant, the wife, constitutes a fraudulent act that reduces the joint security of ordinary creditors including the plaintiff, and thus, the defendant is obligated to implement the procedure for cancellation of ownership transfer registration with respect to the apartment of this case.

3. Whether the fraudulent act is constituted;

A. Formation of preserved claims

The Plaintiff’s claim for value-added tax and global income tax on Kim-ho was established by a taxation disposition after January 24, 2006, which was the date of the instant gift contract, but the value-added tax and global income tax were imposed on the transaction or income accrued during the instant taxation period, and, based on the above tax return, in cases where the tax authority imposed value-added tax and global income tax from 2001 to 2002, prior to the transfer of the instant gift, and based on the above tax return, if the tax authority imposed the disposition of imposition of value-added tax and global income tax, the claim for value-added tax, such as value-added tax, for which a tax disposition was made by false verification after the tax return was made after the last day of each tax taxable period (the first half of the year 2001), on December 31, 201 (the second half of the value-added tax and global income tax in 201), it is probable that the tax claim and global income tax were actually established in the future based on the global income tax claim and global income tax relationship (the value-added tax claim).

B. Whether the self-sufficiency and fraudulent act of Kim ○-ho were established

(i)affirmative property;

(A) At the time of the donation contract of this case, the apartment of this case was the only real estate in Kim Jong-ho, and the fact that each of the secured claims of 210 million won and 100 million won was established with respect to the apartment of this case is recognized as above. According to the evidence Gap evidence No. 5, the market price of the apartment of this case was 350 million won around September 2007, and it is reasonable to view that it was the same amount as at January 24, 2006, which was at the time of the donation of this case. However, if the debtor's property is provided as the physical collateral of other claims, only the balance after deducting the secured claim amount from the value of the property provided as the physical collateral should be assessed as the debtor's active property. Even if it is deemed that the secured claim amount of each of the secured claims established as the apartment of this case reaches the maximum debt amount, it can be viewed as at least 40 million won among the market price of this case.

In addition, considering Eul evidence 3, Eul's 4-1, 2, 3, and 7-1, 8-1, 2-2 Eul's 8-1, 3, Gap's 6 through 9-2, and the whole purport of pleadings for 00 7-1, 700 won and 2-1, 700 won's 7-1, 600 won's 7-2, 700 won's 7-1, 600 won's 7-1, 700 won's 7-2, 700 won's 70-7, 600 won's 7-1, 600 won's 7-2, 700 won's 7-1, 600 won's 7-2, 700 won's 7-2, 300 won's 6-1,0700 won's 7-1,0715 won's 27

(B) Meanwhile, the defendant alleged that ○○○ Co., Ltd.'s shares in 19 million won in total at the time of the donation of this case, and 5 million won in loan bonds and loan bonds of 11 million won in maximum amount against ○○○○○ Co., Ltd. about ○○○○○○, which held at the time of the donation of this case, should also be included in active property. However, in calculating the debtor's active property in relation to the revocation of fraudulent act, the debtor's active property should not be excluded from the debtor's active property, unless there are any other special circumstances. If the property is a bond, it shall be included in active property only where it is confirmed by reasonably determining whether it is certain to receive repayment easily (see Supreme Court Decision 2001Da32533, Oct. 12, 201). According to the evidence No. 11, it can be acknowledged that ○○ Co., Ltd., an issuer of ○○ Co., Ltd., which held stocks of this case, the above ○○○ Co.

In addition, the defendant asserts that inventory assets of 142,950,00 won of goods on the balance sheet of 2005 for the ○○ Credit Operation of Kim Ho-ho should be included in active property. However, as seen above, Kim Ho-ho operated ○○ Credit, in 2001 - - 2002, when it received a processing tax invoice as if it was supplied with goods of 41,364,000 won without real transaction from ○○ Credit for the period of 2001 - - 2002, it reported as if it had been supplied with goods of 41,364,00 won without real transaction. Since the above false purchase products have no choice but to be disposed of as inventory even in some cases in preparation of financial statements for ○○ Credit, it can not be determined whether there remains any actual inventory of the goods on the balance sheet of 2005, since it can not be included in positive property, but shall not be included in the amount of the capital of ○○ Credit Guarantee's witness's account.

(2) Petty property

The Plaintiff’s claim amount of 364,750,590 won, which was based on the legal relationship established at the time of the donation contract of this case, is recognized as seen above, and in full view of the purport of the entire pleadings in the statement in Eul’s evidence No. 3, Kim ○, as of December 31, 2005, was liable for KRW 272,607,131 as of December 31, 2005.

(3) Whether the fraudulent act was constituted

위 인정사실에 의하면 이 사건 증여계약 당시 김○호는 적극재산 704,347,791원 상당(이 사건 아파트 시가에서 근저당권의 피담보채권액을 공제한 잔액 4,000만원 + 골프장 회원권 6,900만원 + 적금채권 6,350만원 + 매출채권을 포함한 당좌자산 429,861,071원 + 임차보증금반환채권 등 투자자산 76,237,990원 + 차량운반구 등 유형자산 25,748,730원)을 갖고 있었고 이에 반하여 소극재산으로 637,357,721원의 채무(= 조세채무 364,750,590원 + ○○제약 운영상 채무 272,607,131원)를 부담하고 있어 적극재산이 소극재산을 66,990,070원(= 적극재산 704,347,791원 - 소극재산 637,357,721원) 초과하는 상태에 있었고 김ㅍ호가 이 사건 증여계약에 의하여 적극재산으로 4,000만원의 공동담보 가치가 있던 이 사건 아파트를 처분하였다 하더라도 처분 이후에도 저극재산이 소극재산을 26,990,070원(= 당초 저극재산 초과액 66,990,070원 - 이 사건 아파트의 적극재산 가치 4,000만원) 초과하고 있어 이 사건 증여계약을 채권자를 해하는 사해행위로 볼 수 없다.

4. Judgment on the defendant's bona fide assertion

Even if the donation contract of this case constitutes a fraudulent act, the defendant alleged that he did not know whether the donation of this case was detrimental to the creditors at the time of receiving the donation of this case from Kim Jong-ho, and thus, she received a processed tax invoice from 001 to 202 from 00, one of the supply and sale offices, and reported the amount of tax accordingly. The above facts were revealed in the process of conducting a tax investigation on the 0th day of December 2006, and around 6th day of August 2007, the defendant did not know that the 10th day after the birth of the apartment of this case from 00 to 10th day of January 24, 2006, and that the 2nd day of October 19, 2007, the 2nd day of October 19, 2007, the apartment of this case and the 2nd day of October 15, 201.

The false purchase declaration, which is the cause of taxation on Kim ○, was made from January 24, 2006, 2001 to April 2002, 2002, which was the date of the donation contract of this case, from January 24, 2006 to April 2007, which was the date of the donation of this case, was revealed in the course of conducting a tax investigation on the ○○ ○ Da ○ Da ○ Do Do dong, one of its supply transaction places, not Kim ○, and accordingly, on August 2007, when more than one year and six months have passed since the date of the donation contract of this case, the taxation was made with regard to the ○ Do Kim ○ ○. The defendant decided to separate from Kim ○ and raise 2 children in several years from around 197, and did not know that the Do ○ Do ○ Do dong Do dong Do , who had been living in the household of this case.

Therefore, the defendant, who is a bona fide beneficiary, cannot seek revocation of a fraudulent act. Therefore, the defendant's above argument is reasonable, and the plaintiff's assertion of revocation of a fraudulent act is without merit under the presumption that the defendant is a bad

5. Conclusion

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