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.

2011 Gohap 117957 Revocation of Fraudulent Act

Korea

Section AA

June 1, 2012

June 27, 2012

1. Revocation of each cash donation contract entered in the separate sheet of the attached donation contract concluded between Defendant ChoA and Nonparty KimB.

2. The defendant shall pay to the plaintiff 00 won with 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.

The same shall apply to the order.

1. Indication of claim;

The reasons for the attached Form shall be as shown in the attached Form.

2. Applicable provisions;

Article 208(3)3, and Articles 194 through 196 of the Civil Procedure Act (Decision by Service by Public Notice)

Grounds of Claim

1. Formation of the initial tax credit;

(1) The taxation authority

Non-party KimB did not pay the capital gains tax notified by the head of the Ansan Tax Office affiliated with the plaintiff by transferring the real estate held as shown in the following table 1, without reporting or paying the capital gains tax. (Evidence A No. 1)

(2) Formation of preserved claims

On or after January 31, 2011, the capital gains tax payment period for KimB against the non-party 2 requires that, in principle, a fraudulent act occurred on or after March 23, 2009 and April 13, 2009, which is the date of the fraudulent act in this case. However, it is highly probable that the legal relationship, which is the basis of the establishment of a claim at the time of a fraudulent act, has already occurred at the time of the fraudulent act, and that the claim is established in the near future. If it is established in the near future, it is highly probable that the claim would be subject to the obligee’s right of revocation, and the legal relationship, which serves as the basis of the establishment of the claim, would not be limited to the legal relationship between the parties, but would be widely included in the legal relationship with the quasi-legal relationship or factual relations with which the establishment of the claim is probable (see Supreme Court Decision 200Da4297, Nov. 28, 2002).

2. Fraudulent act;

(1) Occurrence of fraudulent act

Non-party KimB sold real estate (Evidence No. 10) on April 17, 2009, but the sale price was to be deposited into the account of ChoB's National Bank (Evidence No. 7) which is the husband (Evidence No. 8230131639). This is a donation to the defendant of KimB to avoid the execution of the disposition of national tax in arrears, which eventually led to a situation in which the plaintiff who is the tax authority is a tax authority fails to obtain the satisfaction of the tax authority. This is obvious fraudulent act, and the Supreme Court ruled that the act of transferring the real estate transfer price to the account of the husband's name constitutes a fraudulent act under the circumstances in which the national tax authority was established or is highly likely to be established (Supreme Court Decision 2008Da78736 Decided January 15, 2009).

(2) Reduction of liability accounting

The active property of KimB by transferring the instant real estate by KimB and donating the proceeds of the transfer to the Defendant ChoB, the entire spouse, and KimB’s active property is the entire amount of 000 OOO apartment 0000 OO apartment 0000 of the instant real estate (Evidence A8), and the transfer value of this real estate is KRW 000,000, excluding KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

3. Intention and bad faith of the defendant;

Although the non-party KimB knew of the fact that he should pay the transfer income tax at the time of concluding the transfer contract on the real estate in this case, he donated his financial property to the defendant to the defendant constitutes a fraudulent act committed intentionally to avoid the payment of the transfer income tax in this case to be later notified, and the defendant also knew of the fact that the donation in this case was a fraudulent act and his intention to harm the plaintiff as a tax owner at the time of the act.

4. The date when he became aware of the fraudulent act;

The aforementioned fraudulent act was known by the head of Ansan Tax Office under the Plaintiff only after he/she received a reply on March 17, 2011 to the acquisitor in order to trace the use of KimB's transfer proceeds to execute default. (A)

5. Conclusion

As above, the cash donation contract between the defendant Cho Jae-A and KimB was made with the knowledge that it would prejudice the person having the tax authority in order to be exempted from the disposition of default on national taxes, and the defendant also knew of the fact. Thus, the defendant sought the cancellation of the objection pursuant to Article 30 of the National Tax Collection Act and Article 406 of the Civil Act, and as a restoration to its original state, the defendant Cho Jae-B has the obligation to pay the plaintiff 00 won and pay the damages for delay at the rate of 5% per annum as stipulated in the Civil Act from the day after the date when the judgment of this case became final to the date when the decision of this case was made to the date of full payment.