Whether the Defendant’s donation of money to the delinquent taxpayer constitutes a fraudulent act

The delinquent taxpayer remitted cash to the account under the name of the defendant, but it is confirmed that the account under the name of the defendant was actually used by the delinquent taxpayer, so it cannot be viewed as a fraudulent act.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

§ 406. Revocation of Civil Code

2014 Gohap202299 Revocation of fraudulent act

Korea

AA

November 6, 2014

November 20, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The contract for donation of KRW 20,000,000 between the Defendant and BB on April 13, 2012 shall be revoked. The Defendant shall pay to the Plaintiff 20,000,000 and 5% interest per annum from April 13, 2012 to the date of full payment.

1. Facts of recognition;

A. Through a tax investigation, the Plaintiff: (a) transferred the Defendant’s husband’s non-listed stocks to O on September 2, 2006; and (b) clarified the fact that the transfer value of the non-listed stocks was underreported; and (c) notified BB of the payment of under-reported capital gains tax on June 7, 2010. BB did not pay the said amount in full; and (d) the amount of tax in arrears to be paid by BB as of the filing date of the instant lawsuit reaches KRW 424,158,290 as indicated below.

B. BB is a co-representative ofCC Co., Ltd. (hereinafter referred to as “Non-Party Co., Ltd.”). On June 15, 2012, BB held a loan claim of KRW 2,070,000 against the Non-Party Co., Ltd. (hereinafter referred to as “Non-Party Co., Ltd.”). On June 15, 2012, the Non-Party Co., Ltd. (hereinafter referred to as “Non-Party Co., Ltd.”) sold the Non-Party Non-Party Co., Ltd.’s OO2-4, 140,000,000 out of the purchase price (hereinafter referred to as “the purchase price in this case”) to the Defendant’s K Bank account (number: 603-1247-269-01, hereinafter referred to as “the account in this case”).

C. Of KRW 140,00,000, which was deposited in the instant account, KRW 120,000,000 was used to pay the transfer income tax on April 30, 2012.

D. Meanwhile, BB did not have any property other than KRW 379,056, which was in the balance of its account at the time of receipt of the instant sales amount (BB’s remaining claims of KRW 1,930,000,000, which were held with respect to the non-party company, are difficult to be deemed as active property of BB in light of the certainty of repayment, etc.).

[Ground of recognition] Facts without dispute, Gap 1 through 11, Eul 1 through 5, 7, and 8 (including each number; hereinafter the same shall apply) respectively, the purport of the whole pleadings and arguments

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The plaintiff asserts that "BB made a donation of the above money to the defendant on April 13, 2012, to the defendant's account in excess of the debt amount, which constitutes a fraudulent act, and the part of KRW 20 million, excluding the part used for the payment of capital gains tax by BB, should be revoked and the corresponding amount should be returned as restitution."

B. Determination

On the premise that BB had the Defendant wired KRW 140,00,000 to the purchase price of this case, and then donated this to the Defendant, the Plaintiff asserts that the above act constitutes a fraudulent act against the Plaintiff. We examine whether BB and the Defendant may be deemed to have concluded a gift contract regarding KRW 140,00,000 between B and the Defendant.

If the Defendant intends to establish a gift contract regarding KRW 140,00,000 remitted, the first priority should be recognized between BB and the Defendant to vest the above money in the Defendant. Meanwhile, in the event of a transfer of money to another person’s deposit account, such transfer may be based on a variety of legal grounds, and thus, the Defendant’s acceptance or understanding of the transfer of money to his/her own deposit account, or the actual control of his/her own deposit account is allowed on the sole basis of the fact that a person with a certain personal relationship was aware of the transfer of money to his/her own deposit account in order to avoid tracking the taxation authority, etc., or that he/she consented to or understood the transfer of money to his/her own deposit account, or that it was in fact permitted to actually control his/her own deposit account, barring any special circumstance, it cannot be easily concluded that there was an agreement between BB and the account holder with the intent to grant the remittance money free of charge to the account (see Supreme Court Decision 2012Da30861, Jul. 26, 2012).

Rather, the following circumstances, which are acknowledged by comprehensively taking account of the entire purport of the arguments in the Evidence Nos. 2, 3, 6, and 9, BB, namely, the management right of the OB corporation (hereinafter “OB”) around October 209, as the representative director of the OB, from around December 1, 2009 to September 6, 2010, and from around September 7, 2010, it was actually operated as the above company as the representative director of the 200,000 won transfer from around September 7, 201 to the account No. 300,000 won (the defendant assumed office as the representative director of the OB). In light of the fact that the 201,000,000 won transfer from the account No. 406,000 won transfer from March 31, 201 to the account No. 20140,000 won transfer from the account No. 2401,200,00000.

Therefore, the Plaintiff’s assertion based on the premise that BB donated the instant purchase price to the Defendant is without merit (the Plaintiff asserts that, even if BB did not contribute the instant purchase price to the Defendant, it constitutes a trust agreement under the name of deposit holders, and thus, constitutes a fraudulent act. However, the fact that BB used the instant purchase price deposited into the instant account at that time for the payment of capital gains tax at that time is recognized as above. As such, the trust agreement between BB and the Defendant at the time when B transferred the instant purchase price to the instant account was established, and the said trust agreement was terminated at the time of BB’s withdrawal of deposit or transfer. Therefore, there is no legal act to be revoked at the time of the Plaintiff’s filing of the instant lawsuit. Accordingly, the Plaintiff’s assertion on this is without merit).

3. Conclusion

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