Degree of establishment of claim of revocation

The defendant's fraudulent act is acknowledged, but it is highly probable that the additional tax and additional dues are incurred in the near future among the preserved claims in this case, and thus it cannot be considered as preserved claims in this case.

Article 30 of the National Tax Collection Act Revocation

1. Of the judgment of the first instance, the part against the defendant in excess of the part recognized under the following paragraph (2) shall be revoked, and the plaintiff's claim corresponding to the revoked part

2. (a) The gift contract of KRW 215,00,000 between 00 and the Defendant shall be revoked within the limit of KRW 95,595,989, which was concluded on July 18, 200.

B. The defendant shall pay to the plaintiff 95,595,989 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

3. The defendant's remaining appeal is dismissed.

4. The total cost of a lawsuit shall be ten minutes, one of which shall be borne by the plaintiff, and the other shall be borne by the defendant.

Purpose of appeal and appeal

1. Purport of claim

The contract for donation of KRW 215,00,000 between 00 and the defendant on July 18, 2003 shall be revoked within the limit of KRW 109,844,420. The defendant shall pay to the plaintiff 109,84,420 with 5% interest per annum from the day after the day when the judgment of this case became final and conclusive to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim against the defendant shall be dismissed.

1. Basic facts

A. Regarding imposition of capital gains tax

(1) On May 31, 200, 000: (a) concluded a sales contract with 00,000 - 00 - 00 - 000 - 000 - 290 - and 133.8 m2 - a 2nd 7th 7th m2 in the building on the above ground, which was owned by it (hereinafter referred to as the “real estate in this case”), for the sales price of KRW 610,000,000.

(2) According to the agreement at the time of the above sales contract, the purchaser of the above sales contract takes over the status of the person establishing the right to collateral security (the maximum amount of claims 325,000,000,000, the debtor00, and the 00 Cooperative Federation) established on the real estate in accordance with the agreement at the time of the above sales contract, and takes over 170,000,000 won in the balance of the secured obligation. 20,000 won on the date of the contract at the account of 000, June 29, 2003; 170,000,000 won on June 24, 2006; 200,000 won on July 3, 37, 2003; and 30,000,000 won on the remaining amount of the money divided by consultation at the request of the 000,700,000 won.

(3) As above, 00 did not file a transfer income tax return even after selling the instant real estate to 00 and making a transfer registration. On June 28, 2004, the head of the tax office having jurisdiction over the instant real estate determined the transfer income tax amount to be paid by 000 for the transfer of the said unreported real estate as KRW 95,595,98, additional tax due to the failure to file a final return, KRW 9,59,598, additional tax due to the failure to file a final return, KRW 860,363, 106,015,950, and the additional tax due to the failure to pay the said transfer income tax amount to KRW 3,328,470.

(b) Disposal, etc.

(1) 00, centering on 000, is the wife, Defendant,00,000,000, and 000 are the children. The 000 is the coupled with the agreement on July 16, 2000. As seen earlier, the division of property was made by 00,000, in direct transfer of KRW 100,000 out of the purchase price of the instant real estate to the account of 000.

(2) From July 18, 200, 200 to 15,000,000, each of the above amounts was remitted to the Defendant, and each of the above amounts was donated to the Defendant by remitting KRW 215,00,000 to the Defendant (hereinafter “the donation contract of this case”) (hereinafter “the donation contract of this case”).

(c) Property status, etc.;

At the time of the donation contract of this case, there was no other property other than the sale price of the pertinent real estate. From the above purchase price of KRW 610,00,000, the amount of KRW 170,000,000, the amount of property division of KRW 100,000 to the secured debt of KRW 000 is KRW 340,000,000, and among them, the amount of KRW 245,000 which was donated to the Defendant, 00,000 was deducted from the above amount of KRW 95,00,000 if the amount of KRW 245,00,000 was deducted from the above amount of KRW 170,000, KRW 00 to the account of KRW 170,000, KRW 00-2,000, KRW 200-1,000, and the remaining amount of the deposit was not paid to the account of this case since the date of withdrawal from the account of KRW 0000.

[Ground for recognition] In the absence of dispute, Gap evidence 1, Eul evidence 2-1 through 30, Gap evidence 3-1, 2-4, Gap evidence 5, Gap evidence 6-1, 2-2, Eul evidence 1, 2-3, Eul evidence 13, Eul evidence 16, Eul evidence 18, fact-finding with 00's 00's 00's 00's 00's 1, Eul evidence 6-2, Eul evidence 1, 2-3, Eul evidence 13, Eul evidence 16, Eul evidence 18, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the contract of this case between 000 and the defendant should be revoked within the limit of the amount of the plaintiff's transfer income tax claim as a fraudulent act, and that the plaintiff is obliged to pay to the defendant the amount of 215,000,000 won, 15,000,000 won, out of the purchase price of the real estate of this case, which is the only property of 000, and 000, respectively, as the creditors' joint security of 00 is reduced and the excess of obligation deepens. Thus, the contract of this case between 00 and the defendant should be restored within the limit of the amount of the plaintiff's transfer income tax claim, which is the preserved claim, and that the plaintiff is obligated to pay the same amount as the above taxation claim to the plaintiff.

B. Determination

(1) The existence of the preserved claim

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 can be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been legal relations that serve as the basis of the establishment of the claim, and that the claim should be established in the near future legal relations. In the near future, where a claim has been created because the probability has been realized in the near future, the claim may also become a preserved claim

With respect to this case, income tax on capital gains from the transfer of public health and assets is a tax on preliminary return and payment, and the liability for payment is abstract on the last day of the month (the month to which the date of the transfer of assets belongs) in which the amount which serves as the tax base is derived from the interpretation of Article 21(2)2 of the Framework Act on National Taxes (see, e.g., Supreme Court Decision 88Nu2519, Oct. 13, 1989). Since the real estate was sold on May 31, 2003, the above liability for capital gains tax was abstractly established on May 31, 2003, and this constitutes the basic legal relationship of capital gains tax imposed thereafter, which is the basic legal relationship of capital gains tax, which is short of the tax base, and thus, it is probable that the tax claim of this case was not subject to preliminary return under Article 105 of the Income Tax Act until the last day of the month to which the transfer date belongs, and thus, the Plaintiff did not make a final return of capital gains tax claim of this case.

However, according to Articles 110 and 111 of the Income Tax Act, a resident with capital gains in the current year did not make a final return of tax base of transfer income and a final return of tax base from May 1 to 31 of the same month following the current year. In imposing the capital gains tax on June 28, 2004, the Plaintiff imposed the additional tax of KRW 9,559,598 due to a failure to file a return and additional tax of KRW 860,363 due to a failure to file a return on June 28, 200 on the above principal tax of capital gains tax and KRW 95,595,950, which was determined on June 28, 200 and imposed on KRW 106,015,950 until the date of filing the lawsuit of this case, and it is difficult to view that the above final return of transfer income tax and additional tax were imposed on KRW 3,328,470 from the date following the due date of payment, and thus, the above final return of transfer income tax and additional tax were imposed on KRW 1400.38.

(2) Whether a fraudulent act was committed

(A) According to the above 1. The above facts, 00 won at the time of the donation contract of this case did not have any property other than 340,000,000 won remaining after deducting the acquisition amount of the obligation under collateral security and the division amount of property against 00,000, out of the sale amount of the real estate of this case. 15,000 won and 215,000,000 won and 245,000 won and 245,000 won and 95,595,989 won and less than the above capital gains tax liability of this case were transferred to the defendant, and only 95,00,000 won and less than the debt holding, and actually, the total amount of each account remaining in 00,000 won was 28,220,174 won at the time of the donation contract of this case, it can be seen that the defendant's fraudulent act was harmful to the general creditor of this case.

(B) On this issue, the defendant asserts that 000 won was only 15,000,000 won that was donated to the defendant and that the remaining 200,000,000 won was entrusted to the defendant for management, and even if not, in the process of purchasing a variety of insurance with the above 000 amount, the above insurance was covered by a standardized contract loan as security and was covered by medical expenses. Thus, the total amount of the donation in this case cannot be viewed as a fraudulent act.

Therefore, considering the following facts: Gap's evidence Nos. 18, Eul evidence Nos. 4, Eul evidence Nos. 7-1 through 4, Eul evidence Nos. 8, 9-2, Eul evidence Nos. 10, Eul evidence Nos. 11, 12-1, 2, Eul evidence Nos. 13 and 14-1 through 10, the defendant received insurance money No. 1000, Aug. 21, 2003 as 00, and other facts that the defendant received insurance money No. 1000, Oct. 200, 2000 under the above facts that he received insurance money No. 1000, Oct. 3, 2003; the defendant received insurance money No. 2000, Oct. 20, 2005 under the above terms and conditions as security; and the defendant received money No. 9700, Oct. 20, 2005.

(C) In other words, the defendant deposited KRW 200,00,000 in the account of 00 on August 1, 2003, which was after the contract of this case, but as such, the above donation contract was asserted to have been partially revoked. Thus, according to the evidence Nos. 18, it can be acknowledged that the account of 00,000 won was deposited in the account of 00,000-00,000 of the National Federation of 100, Aug. 10, 2003, in cash, but it is difficult to view that the defendant revoked part of the donation contract of this case and returned the money received as a partial donation. Rather, according to the above evidence Nos. 18, it is recognized that the above amount was withdrawn immediately after the deposit in cash, and the above amount was additionally withdrawn as 28,000,000 won at the time, and only remaining 6234,000 won was remaining.

(D) In addition, the Defendant asserts that since the Defendant deposited KRW 10,000,000 into the above account of 00 on the day of the instant donation contract, it should be deducted from the donation amount under the instant donation contract. As seen above, the Defendant’s assertion is without merit since it cannot be deemed that the above KRW 10,000,000 is a partial return of the donation amount under the instant donation contract, in light of the Defendant’s insurance policy, terms and conditions loan, and termination of the instant contract.

(3) Whether the defendant, who is a beneficiary, acted in good faith

The defendant could not expect that the above transfer income tax was not paid at the time of the donation contract of this case. The defendant argued that the transfer income tax was imposed at KRW 10,000,000 at the time of entering into the real estate sales contract of this case through 000, and that since most of the above money was used for medical expenses of KRW 000, the defendant did not know that the donation contract of this case was prejudicial to other general creditors such as the plaintiff, etc.

Therefore, there is no evidence to acknowledge the defendant's above assertion, and rather, according to the statement of Gap evidence No. 1, it can be acknowledged that 000 purchased the real estate of this case in 91,202,266 won and owned it for one year or more, and as seen in the basic facts of the above 1. As 1., since 00 won sold the real estate of this case to 610,000 won as seen in the above 1. Thus, the defendant who is a dependent of 000 is subject to transfer income tax equivalent to 00 won due to sale of the above real estate at the time of conclusion of the donation contract of this case, and 000 won due to the above donation by the defendant et al. of 00 against the defendant et al., the above assertion by the defendant is groundless.

3. Conclusion

Therefore, the contract of donation of KRW 215,00,00 between the defendant and 00 shall be revoked within the limit of KRW 95,595,989, which is the plaintiff's preserved claim amount, and the defendant shall be obligated to pay to the plaintiff the amount of KRW 95,595,989 and the amount calculated by the rate of KRW 5% per annum from the day following the day when the judgment of this case became final and conclusive to the plaintiff. Thus, the plaintiff's claim against the defendant in this case against the defendant shall be accepted within the above recognized limit, and the remaining claims shall be dismissed without merit. Since the part against the defendant in the judgment of the first instance against the defendant which differs from the above conclusion is unfair, it shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed, and since the defendant's remaining appeal is without merit, it shall be dismissed. It is so decided as per Disposition.