Cash donation paid to the spouse to be exempted from the disposition on default of national taxes constitutes a fraudulent act.

The cash donation contract between the defendant and his spouse is a fraudulent act committed with the knowledge that it would prejudice the person who has tax authority in order to be exempted from the disposition of default on national taxes, and the defendant should also be revoked, and it should be restored to its original state.

Cancellation of investigation new acts under Article 30 of the National Tax Collection Act

§ 406. Revocation of Civil Code

2012 Gohap1184 Revocation of Fraudulent Act

Korea

KimA

May 31, 2013

August 23, 2013

1. A contract on the donation between the Defendant and ParkB (O-OO-OOO-OOOO-OO-OO-OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-

2. The defendant shall pay to the plaintiff OOO and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Formation of a taxation claim

"1) On May 16, 201, ParkB sold 273-3, 273-6, 273-10, 273-12, 273-12, 273-15 site and 43 square meters of road and 589.69 square meters of ground buildings (hereinafter referred to as “instant real estate”) to the Saemaul Cooperative, which was owned by it, for purchase price OO, and on August 31, 201, the head of the tax office affiliated with the Plaintiff did not pay capital gains tax on the transfer of the instant real estate, even though he voluntarily reported the transfer of the instant real estate, on November 10, 2011.

3) After that, on October 18, 2012, ParkB decided to reduce capital gains tax to reduce the capital gains tax amount by reducing the amount of OOO, additional charges and increased increased additional charges among the capital gains tax on December 13, 2012, but ParkB did not pay the capital gains tax so far.

"4) The amount of delinquent capital gains tax of ParkB as of the date of closing argument of the instant case is OOB (hereinafter “tax claim of this case or tax obligation of this case”). B. Receipt of the sales price of the instant real estate

1) At the time of the conclusion of the above sales contract, ParkB andCC Saemaul shall be paid the down payment OOOO on the date of the contract, and the remainder OOOOO on June 15, 201, respectively. The order of the lessees of the instant real estate is held liable by ParkB on January 3, 2012, and the rent deposit shall be settled at the time of payment of the remainder, and ParkB agreed that the remainder of the lease deposit shall be secured by the OOOOOCC as a fixed deposit at the Saemaul Fund.

2) On June 15, 2011, the Saemaul Cooperative paid down payment OOB to ParkB on the date of the contract. On June 15, 201, OOOOOB deposited OOB with the OB’s term deposit in the name of OB, and paid the remainder OOOB to ParkB by repaying the sum of the secured debt and the rent under the name of the OOF and OO credit union.

(c) Cash donation to the defendant by ParkB;

1) On July 9, 2011, the Defendant purchased 418-3 large 908 square meters, 418-8 large 404 square meters, and its ground buildings from the Kim DD, Maximum E, OE, from the purchase price, and paid the down payment to OOO members on the day of the contract, the intermediate payment OOO members on July 18, 201, and the remainder OOO members on August 4, 201.

“2) ParkB donated part of the purchase price of the instant real estate to the Defendant who is his wife (hereinafter “each of the instant donations”) as listed below, and the date of payment.

Payments

Method of payment

July 9, 2011

OOOE

The transfer of the down payment to the above OO-dong real estate deposit to be paid by the Defendant to KimD by ParkB to the KimD account

July 18, 2011

OOOE

ParkB-B shall pay to KimD, out of the above OO's real estate purchase price to be paid by the defendant to KimD.

July 20, 2011

OOOE

ParkD transfers OOO of the instant real estate purchase price to the Defendant’s account.

In the absence of dispute over the basis of recognition, Gap evidence Nos. 4, 5-1, 2, and 6-1 to 3, 7, 8-1, 2, 9, 12, 14-1 to 6, 18, and 14-1, and the purport of the whole pleadings, from evidence No. 1 to evidence No. 1

2. Determination

(a)the existence of preserved claims;

Although it is necessary to say 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 exists a legal relationship that has already been based on which the claim is established, and that a claim should be established in the near future due to the realization of the possibility in the near future, the claim may also become a preserved claim in the obligee’s right of revocation in the near future. This legal principle applies to a claim for taxation, as it is also applicable in the case of a claim, even though there was no specific decision of correction, etc. at the time of the fraudulent act, there was a basic legal relationship as to the occurrence of a claim, and if a tax claim was specifically established through a series of procedures, such as the actual decision of correction, etc., under a high probability that the near future claim may be established (see, e.g., Supreme Court Decision 200Da37821, Mar. 23, 2001).

In light of the above legal principles, although ParkB did not impose capital gains tax on the plaintiff ParkB at the time of each gift of this case, it was established that the obligation to pay capital gains tax was established abstractly by selling the real estate of this case on May 16, 2011, and the legal relationship, which forms the basis for establishing a claim that can be protected by the creditor's right of revocation, was established. It was highly probable that ParkB did not fulfill all the obligation to pay capital gains tax after the transfer of the real estate of this case, and that the tax claim against the plaintiff ParkB should be established in the near future at the time of each gift of this case. In fact, on November 10, 201, the plaintiff imposed capital gains tax on ParkB on the plaintiff, and on December 13, 2012, it was probable that the creditor's right of revocation of this case should become the creditor's right of revocation.

B. Establishment of fraudulent act

1) The point of time to determine the piracy

In principle, in cases where a debtor continuously disposes of several assets, it shall be determined in accordance with whether each act causes insolvency. However, when there are special circumstances to deem such a series of acts as a single act, it shall be determined in a lump sum. In such a case, whether each disposition is identical to the other party, whether each disposition is close to time, whether the other party and the debtor are specially related, and whether the motive or opportunity for each disposition is identical (see, e.g., Supreme Court Decision 2005Da7795, Jul. 22, 2005).

The other party to each gift of this case is the same fact as the defendant, each disposition date is close to the fact that there is a difference between the two parties, ParkBB and the defendant, and each of the above dispositions was made by the same motive that the defendant uses the above OO real estate as the defendant's purchase fund. In full view of these facts, it is reasonable to view that ParkB's each of the donations of this case is a series of acts according to the same intent to cause harm, and thus, it is reasonable to judge the whole of such facts as a whole.

2) The establishment of fraudulent act

In order to become a fraudulent act, the debtor's act of disposing of the debtor's property causes a decrease in the debtor's whole property and thus, the debtor's passive property should be more than active property. In other words, even if the debtor's active property among his/her active property at the time of the debtor's act of disposing the property exceeds the creditor's claim amount, the calculation of the active property should be excluded from the active property that has no real value and cannot serve as joint security for the claim, unless there are other special circumstances. If the property is a claim, it should be reasonably determined whether it is reliable to receive payment easily and should be included in the active property (see, e.g., Supreme Court Decisions 201Da32533, Oct. 12, 2001; 201Da4545, May 24, 2012).

According to Gap evidence 2, No. 4, No. 5-1, No. 10, and No. 14-2, and No. 17-2, and the purport of each of the statements stated in No. 17, which were issued by the 20-OBCC at the time of the gift of the above real estate was added to the total amount of No. 20-OB-1, the 10-OB-2, which was not issued by the 10-OB-1, and the 20-OB-2, which was not issued by the 1,000-OB-3, the 1,000-OB-1, the 3,000-OB-2, the 1,000-O's deposit money, which was not issued by each of the 1,000-OB-O's OB-3,000-O2,000 won.

Unless there are special circumstances, each gift of this case constitutes a fraudulent act that causes damage to the general creditors of ParkB, and the debtor as a debtor was aware that such act was prejudicial to other general creditors at the time, and the defendant's bad faith is presumed to be a beneficiary.

(c) Revocation of fraudulent act and reinstatement;

Therefore, each of the instant gift contracts concluded between the Defendant and ParkB shall be revoked within the limit of the amount of claims claimed by the Plaintiff as a fraudulent act, and the Defendant is obligated to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when this judgment becomes final and conclusive to the day when the Plaintiff is fully repaid.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.