Whether the part of the property which the delinquent taxpayer donated to the defendant is a fraudulent act is the sole child

It constitutes a fraudulent act if a delinquent taxpayer donated his or her only real estate to the defendant, who is a child after a transfer contract which is the basis of establishment of capital gains

Seoul Western District Court-2014-Ga-252385 (O7.09)

Korea

○ Kim

1, 2015.06

2015.07.09

1. The contract of donation concluded on February 28, 2014 between the defendant and KimA shall be revoked.

2. On March 7, 2014, the Defendant performed the procedure for cancellation registration of ownership transfer registration, which was completed under the receipt of No. 14779 on March 7, 2014, with respect to the real estate listed in the separate sheet to KimA. 3. The litigation cost is borne by the Defendant.

The same shall apply to the order of the Gu office.

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if the whole purport of the pleadings is added to each entry in the evidence Nos. 1 through 3.

A. On December 27, 2013, KimA sold 41,111,00 square meters of 142-3 forest land in △△△-si, △△△-si, △△△△-si, △△△△-si, △△△-si, △△△△-si, the director of the tax office in charge of the tax office under the Plaintiff notified KimA of the payment of KRW 121,712,150 of the capital gains tax until June 10, 2014. The amount of unpaid tax including delay damages on November 19, 2014 is KRW 131,205,670. (b) On February 28, 2014, KimA donated the gift of the real estate (hereinafter referred to as the “real estate”).

2. Determination

A. In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there has already been established a legal relationship that serves as the basis for the establishment of the claim, and there is high probability that the claim would have been created in the near future, and in a case where a claim has been created due to the realization of the probability in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 200

Income tax paid by preliminary return, such as capital gains tax, is abstractly established on the last day of the month in which the amount that serves as the tax base occurs (Article 21(2)2 of the Framework Act on National Taxes). As such, the obligation to pay capital gains tax on the transfer of land by KimA around December 31, 2013 has already been established as of December 31, 2013, and there was a high probability that a legal relationship that serves as the basis for the occurrence of a tax claim has already been established, and thereafter the Plaintiff’s transfer income tax claim against KimA was likely to occur in the near future. In fact, it is probable that the Plaintiff imposed capital gains tax on KimA on May 12, 2014, thereby establishing the capital gains tax claim. Accordingly, the Plaintiff’s tax claim becomes the preserved claim of the obligee’

B. Unless there are special circumstances, KimA’s donation to the Defendant of the instant real estate, the sole property of which is one of its own property, under the status that KimA bears a large amount of tax liability against the Plaintiff, constitutes a fraudulent act against the Plaintiff,

C. As to this, the defendant only donated the real estate of this case to the defendant who was considered to be in a difficult situation by KimA, and there was no intention to act in good faith, but there is no evidence to acknowledge this. Thus, the defendant's defense is without merit.

3. Conclusion

The plaintiff's claim is accepted.