It is difficult to see that the debtor had an intention of deception at the time of concluding a sales contract.

If the debtor was unaware of the fact that an obligation for capital gains tax exceeds his/her active property at the time of the conclusion of a sales contract, it cannot be deemed that the sales contract was concluded with the knowledge that the shortage of joint security for claims occurs.

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

2014 Gohap208381 Revocation of Fraudulent Act

Korea

Section AA

June 11, 2015

July 2, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant and Nonparty B (**************, ○○○○○○○○○○0-0) cancelled a sales contract concluded on September 30, 201 with respect to the real estate listed in the attached Table 1 between the Defendant and Nonparty B (****, ○○○○○○○○○○○○○○○○0-0). The Defendant shall implement the procedure for cancellation of ownership transfer registration completed on October 13, 201 with the receipt of 27269. The sales contract concluded on September 30, 201 between the Defendant and NonpartyB on September 30, 201 with respect to the real estate listed in the attached Table 2 within the limit of KRW 00,000,000,000, and the Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day the instant judgment became final to day of full payment.

1. Basic facts

A. As to the non-party B’s seven parcels (referring to the above 00-1, 2, 3, 4, 5, 00-12 land and the above 00-00-12 land, which were partitioned within the above 00-0 land; hereinafter referred to as “the aggregate of each of the above parcels of land at 00 ○○ District Court ○○○○○○○ Branch ○○○○ Branch ○○○ Branch ○○○○ Branch ○○○○ Branch ○○○○ Branch ○○○○ on June 7, 2011, the ownership transfer registration was made in the name of Non-party BCC on April 3, 201 and the ownership transfer registration was made in the name of Non-party 34074 on June 7, 201, under the name of Non-party 2074 on April 13, 201.

B. On September 30, 201, thisB entered into a sales contract with the Defendant, who is one’s wife, to sell each of the real estate listed in the separate sheet (hereinafter “each of the instant real estate”) for KRW 000,000,000 (hereinafter “instant sales contract”). On September 30, 201, this B entered into an agreement with the Defendant to sell each of the instant real estate listed in the separate sheet (hereinafter “instant sales contract”). On October 13, 2011, ○○ District Court ○○○69 (No. 27269) received on October 13, 201, with regard to the real estate listed in the separate sheet 1, the registration of ownership transfer based on the sale on September 30, 201, ○○ District Court ○○○○○ branch ○6245, Oct. 18, 2011, each of which was completed on September 30, 2011.

C. On November 10, 201, the head of ○○ Tax Office decided to impose capital gains tax of KRW 0,000,000 (hereinafter “instant capital gains tax”) on B on the grounds that B did not pay capital gains tax even after he/she transferred each of the instant land to ParkCC as described in the foregoing paragraph (a) and notified that the said capital gains tax should be paid by November 30, 201.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 6, 7, and 9, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff asserted that, while the Plaintiff was liable to pay the transfer income tax of this case to the Plaintiff, the sales contract of this case was concluded with the Defendant. At the time, the Plaintiff’s passive property of this case was in excess of the positive property, and the sales contract of this case deepens the debt of this BB due to the instant sales contract, the sales contract of this case should be revoked as a fraudulent act. Accordingly, the Plaintiff asserts that, as to the real property listed in the separate sheet 1, the cancellation of the transfer of ownership registration and the payment of KRW 00,000,000 as compensation for the value of the real property listed in the separate sheet 2.

B. Defendant’s assertion

On May 31, 201, the Defendant lent KRW 00,000,000 to BB, and purchased each of the instant real property by setting the sales price for each of the instant real property including the said loan. At the time of the instant sales contract, the Defendant was unaware of the transfer income tax obligation of B at the time of the instant sales contract, and thus is a bona fide beneficiary, and BB, the obligor, was to bear all the tax amount incurred after March 2004, 204, on each of the instant land of ○○○○, as the obligor, was aware that he did not bear the transfer income tax, and thus, the instant sales contract was not recognized as fraudulent.

3. Determination

(a)the existence of preserved claims;

On June 7, 201, 201 with respect to each of the instant land owned by this BB, the Defendant entered into the instant sales contract with this B on September 30, 201, and the head of the ○○ Tax Office imposed and notified this BB of the transfer income tax amount of KRW 0,000,000 on each of the instant land of ○○○○○○ on November 10, 201.

According to the above facts, on September 30, 201, which was at the time of the conclusion of the instant sales contract, the BB completed the registration of transfer of ownership with respect to each of the instant land of ○○○○○○, and the legal relationship, which is the basis for the establishment of the Plaintiff’s claim for capital gains tax with respect to the Plaintiff’s claim for capital gains tax with respect to the Plaintiff’s transfer income tax with respect to the instant land of ○○○○, was established in the near future. In fact, it is highly probable that the instant transfer income tax with respect to B was imposed on November 10, 201 and its probability was realized in the near future (see, e.g., Supreme Court Decisions 2013Da5855, Apr. 26, 2013; 200Da37821, Mar. 23, 2001).

B. Whether the fraudulent act was established

According to the purport of each of the statements and arguments in Gap's 3, 4, 5, 8, Eul's 7, 8, 9, and Eul's 7, 8, and 9 (including a serial number; hereinafter the same shall apply) and the whole pleadings, each of the real estate of this case (340,000,000) and 4,950 square meters (30,000,000,000) for ○○○○○○○○○, ○○○, ○○, ○○, ○○-dong, ○○-dong, ○○ ○○ 180,00, 000, 000 won, 00 won, 40, 000, 000 won, 00, 000, 000, 000, 000, 205, 205, 36,000.

According to the above facts, the active property of thisB at the time of the conclusion of the instant sales contract is KRW 1,323,073,925 (= KRW 340,00,000 + KRW 30,000 + KRW 405,000 + KRW 532,00,000 + KRW 16,073,925), and the small property is KRW 2,246,407,630 (= KRW 1,024,407,630 + KRW 430,00 + KRW 50,00,000 + KRW 292,00,000 + KRW 292,00,000 due to the instant sales contract, which further deepens the creditor of this case.

C. The debtor's intent to cause harm and the defendant's good faith

The following facts may be acknowledged in full view of each evidence adopted earlier, Gap evidence Nos. 10, 11, Eul evidence Nos. 1 through 6, and 10 through 12, and the testimony and the purport of the whole pleadings by Lee B-B.

① On April 3, 2001, thisB concluded a sales contract with the effect that: (a) on April 3, 2001, 200, ○○○○○ 30-1 land in ○○○○ ○○○○○ ○○ ○○ ○○ ○○ ○○ 30-1 land was to be sold; (b) down payment of KRW 2,191,00,000 on the date of the contract and the remainder of KRW 747,80,000,000 was to be paid by March 13, 2004; (c) however, the fact that the BB was to offset the purchase price with the money borrowed from the said ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 2002.

② On the other hand, this B and ParkCC agreed to bear all the tax amount due to the delay in the registration date after the remainder due to the special terms and conditions of the said sales contract.

③ According to the above sales contract, ParkCC filed a registration of the right to claim ownership transfer by means of a sales promise on April 3, 2001 with ○○ District Court ○○○○○ Branch ○○○○○○ ○○○○○ ○○○ on April 6, 2001, which was received on April 6, 2001.

④ In addition, on April 13, 2002, thisB decided to sell ○○○○○-○○ land as the purchase price of KRW 382,50,000 between the ParkCC and the sales price of KRW 136,30,000, the down payment of KRW 246,200,000 on the date of the contract and the remainder of KRW 246,20,000 on March 13, 2004 was determined to pay the remainder of KRW 246,20,00 on the date of the contract. The ParkCC prepared a loan certificate with B on the remainder of the loan, and the ○○ District Court ○○○○○○○ ○○ ○ ○○ ○ ○○ ○ ○ ○161 received on April 15, 2002, the ownership transfer claim registration was completed on April 13, 2002.

⑤ On March 15, 2004 with respect to each of the instant land of ○○○○, ParkCC: (a) on March 15, 2004, registered the establishment of a neighboring mortgage with the debtor ParkCC, the maximum credit amount of KRW 1,008,000,000; (b) on March 15, 2004, the registration of the creation of a superficies with the superficies with the superficies ○○○○○○○○ Federation with the superficies on March 15, 2004; (c) on August 29, 2006, the debtor NewD (the spouse of ParkCC), the mortgagee ○○○○, the maximum credit amount of KRW 624,00,000, and repeated the cancellation and registration of the provisional registration under the name of ParkCC.

(6) In addition, from around 2002, ParkCC had obtained a consent from the BB to use each land of this case with respect to mountainous district development permission, and is performing a public construction project on each land of this case by obtaining permission for the development of mountainous district. Since the temporary landscape, it has been performing a development project on each land of this case. Since the temporary landscape, it has imposed various taxes on each land of this case

7) On the other hand, ParkCC did not complete the principal registration on each of the instant land at ○○○○, but completed the registration of ownership transfer after about ten years from the date of the sales contract. On August 31, 2011, on behalf of thisB, it directly reported the transfer income tax on each of the instant land at ○○○○.

(8) After completing the registration of ownership transfer in the name of the above ParkCC on October 12, 201, ParkCC: (a) registered creation of a neighboring mortgage amounting to KRW 348,000 on the debtor ChoE, ○○○○○ Federation, the maximum debt amount; (b) on June 26, 2013, the registration of creation of a neighboring mortgage amounting to KRW 660,000,000 has been completed; (c) however, the ParkCC paid the loan interest.

① When calculating the transfer income tax expected to be imposed on each of the above lands as of March 13, 2004, which is the remainder payment date of each of the instant land at ○○○○○, according to the officially assessed individual land price, it is equivalent to KRW 3,042,110 for the land of ○○○○ 30-1, and KRW 6,375,330 for the land of ○○ 32-13.

(10) On May 31, 201, thisB borrowed KRW 40,000,00 from the Defendant as the operational fund of ○○○○○, a stock company run by thisB. On June 26, 2011, thisB: (a) specified the purchase price of real estate listed in attached Table 1 as KRW 300,000; (b) sold to the Defendant on June 26, 2011, the Defendant succeeded to KRW 130,000,000 for collateral security obligations of ○○ Bank, a stock company established on the said land; (c) was paid the remainder of KRW 170,00,000; and (d) sold the purchase price of real estate listed in attached Table 2 as KRW 40,00,000; and (d) written a written promise to substitute the purchase price with KRW 40,00,000,000 borrowed from the Defendant on May 31, 2011.

11. On August 1, 2011, LeeB made a sales contract concerning each of the instant real estate with the Defendant, and received KRW 170,000,000 from the Defendant, and again made a sales contract with regard to each of the instant real estate listed in the separate sheet No. 1 on September 30, 2011 in order to complete the registration of ownership transfer with respect to each of the instant real estate, with respect to the real estate listed in the separate sheet No. 2, the sales contract with KRW 300,000,000, with respect to each of the instant real estate as stated in the separate sheet No. 2.

In full view of the above facts, around 2001 and 2002, this BB transferred the right to use, benefit from, or manage and dispose of each of the instant ○○ land to ParkCC. ParkCC committed development activities on each of the instant ○○ Ri land, or using, benefitting from, or managing and disposing of such land by obtaining a loan as security, etc., and it appears that BB completed the registration of ownership transfer on each of the instant ○○ Ri land until around 201. It did not exercise its right over each of the instant ○○ Ri land for about about 10 years. Considering that the transfer of the registration of each of the transfer income tax on each of the instant ○○ Ri land was delayed, each of the above facts and evidence adopted prior to each of the above facts alone did not have sufficient evidence to acknowledge that the transfer income tax on each of the instant ○○ Ri land exceeded its own property at the time of the conclusion of the instant sales contract, nor did it have any other evidence to acknowledge that each of the instant ○ Ri land was insufficient to acknowledge the joint B’s liability.

Therefore, the plaintiff's claim of this case based on the premise that the debtor LeeB had the intention to understand is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.