Whether an act of donation to the spouse of a real estate which is the sole property of the debtor is a fraudulent act

the debtor's only property is a fraudulent act to give such property to his spouse.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2017 Mada610 Revocation of Fraudulent Act

Korea

○ Kim

May 30, 2017

June 27, 2017

1. As to real estate listed in the separate sheet:

A. The contract of donation concluded on June 8, 2016 between the defendant and Lee ○○ shall be revoked.

B. The Defendant shall implement the procedure for the cancellation of registration of the transfer of ownership, which was completed as No. 47641 on June 8, 2016, to ○○○○○.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. After conducting a tax investigation on ○○ Company, the director of the tax office under the Plaintiff-affiliated tax office found omission in filing a return of corporate tax and value-added tax for the business year from January 1, 2009 to January 2015, and imposed corporate tax and value-added tax on September 5, 2016, October 5 of the same year and November 6 of the same year as indicated below.

B. However, on September 30, 2016, the payment deadline for the above corporate tax and value-added tax, etc., ○○ Company did not pay the corporate tax and value-added tax as above on October 31, 2016, and November 30, 2016. Accordingly, on January 5, 2017, the head of the ○○ Tax Office designated Lee○, the representative director of the ○○ Company, as the secondary taxpayer, and notified the secondary taxpayer to pay the same details as indicated in the following table, and the above notice of payment was served on this ○○ on January 6, 2017 (hereinafter “instant tax claim”).

C. On June 8, 2016, ○○ (hereinafter “○○”) donated real estate listed in the separate sheet (hereinafter “instant real estate”) to the Defendant, the spouse, and completed the registration of ownership transfer under the Daegu District Court Daegu District Court’s Daegu District Court’s ○○○○○○○ on the same day (hereinafter “instant gift agreement”).

D. At the time of the donation contract of this case, ○○ had no property other than the instant real estate.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings

2. Determination

(a) the existence of the right to preserve;

In order to establish the secondary tax liability that is to be borne by oligopolistic shareholders, etc. of a corporation, the primary taxpayer’s default and other requirements must arise. Thus, the secondary tax liability shall be established abstractly after the expiration of the “principal tax liability” and it shall be determined by giving notice of payment (see Supreme Court Decision 2010Du13234, May 9, 2012). Although it is necessary that claims protected by obligee’s right of revocation may, in principle, be established before the fraudulent act took place, but it is highly probable that there has already been a legal relationship that serves as the basis for the establishment of the claim at the time of the fraudulent act, and that a claim should be established in the near future. In fact, where a claim has been established as a result of its realization in the near future, the claim may also become a preserved claim of obligee’s right of revocation, and such legal principle shall also apply in cases of a tax claim. Thus, if a claim has not yet been determined by a specific decision of correction, etc. at the time of the fraudulent act, it may be established within 2007.361.

According to the above facts, since a tax claim against ○○, a principal taxpayer, was established, there was a legal relationship that forms the basis for establishing secondary tax liability against the Plaintiff at the time of the instant donation contract. The payment deadline for the said principal taxpayer’s tax liability is close to the date of the instant donation contract, and as ○○ was aware of the fact of delinquency as the representative director of ○○○, the secondary taxpayer was highly likely to establish the secondary taxpayer’s tax liability to ○○ at the time of the instant donation contract. In fact, since the secondary taxpayer’s designation and payment notice for ○○ was made on January 5, 2017, tax claims of the Plaintiff may be preserved claims against the revocation of fraudulent act.

(b) The intention to commit fraudulent acts and to injure himself;

1) The establishment of fraudulent act

The debtor's act of selling real estate, which is its only property, and replacing it with money which is easy to consume or transferring it to another person without compensation, becomes a fraudulent act against the creditor, barring any special circumstances. Thus, the act of donation to the defendant of this case, which is the only property of this case

2) Defendant’s defense

The Defendant asserted that ○○○ was not aware of the obligee’s failure to pay taxes of one billion won or more at the time of the instant donation contract because ○○ was in arrears with taxes of one billion won or more, and thus, ○○ was donated the instant real estate as a result of division of property while promising a divorce. However, even according to the Defendant’s assertion itself, in light of the Defendant’s assertion itself, it was impossible to cope with the Defendant’s delinquency in paying taxes, thereby resulting in the instant donation contract. In addition, in light of all the circumstances, such as the relationship between the Defendant and the Defendant, and the time of the instant donation contract, the Defendant’s defense is not accepted on the sole basis of

(c) Reinstatement;

In accordance with the Plaintiff’s exercise of the Plaintiff’s right of revocation, the instant donation contract shall be revoked as a fraudulent act, and the Defendant is obligated to implement the procedure for cancellation of ownership transfer registration with respect to the instant real estate to ○○○ by restitution thereafter.

3. Conclusion

If so, the plaintiff's claim of this case is justified and accepted.