[2] Legislative intent of Article 31 (2) 3 of the Local Tax Act and the scope of "local tax imposed on the property" under the same provision

[3] Whether the fire-fighting common facility tax constitutes "local tax imposed on the property" under Article 31 (2) 3 of the Local Tax Act (affirmative) (affirmative)

[2] Article 31 (2) 3 of the Local Tax Act (amended by Act No. 4995 of Dec. 6, 1995) aims to properly harmonize the judicial request to guarantee the safety of transaction and the public interest request to secure the realization of tax claims with respect to the secured right accompanying the public disclosure. Thus, even if the pertinent tax has priority over the claims secured by the secured right, it does not infringe on the essential contents of the secured right. Therefore, the "local tax imposed on the property" under the proviso of Article 31 (2) 3 of the Local Tax Act shall be deemed to mean only the local tax imposed by the person who acquired the secured right, as it can be predicted to the extent that it would be imposed on the property in the future, and it shall be deemed to mean only the local tax imposed by recognizing the tax-bearing capacity in itself.

[3] In full view of the provisions of Articles 239 and 241 of the Local Tax Act (amended by Act No. 4995 of Dec. 6, 1995), Article 32 of the Gyeonggi-do Tax Ordinance, and Articles 240, 242(1), and 189 of the Local Tax Act (amended by Act No. 4995 of Dec. 6, 1995), the fire-fighting common facility tax can be deemed as local tax imposed by recognizing the capacity to pay the building or vessel itself for the purpose of appropriating the expenses necessary for fire-fighting facilities. Since the person who acquires the real right to collateral security can easily predict that the owner as of the tax base date of each year should be subject to the fire-fighting facility tax on the building or vessel, the fire-fighting common facility tax constitutes a local tax imposed on the property under the proviso to Article 31(2)3 of the Local Tax Act (amended by Act No. 4995 of Dec. 6, 1995).

1. Ground of appeal No. 1

Article 31 (2) 3 of the Local Tax Act (amended by Act No. 4995, Dec. 6, 1995; hereinafter referred to as the "Act") provides that the local tax and additional dues are collected from among the amounts arising from the sale of property which is the object of the right of lease on a deposit basis, pledge, or mortgage established prior to the statutory due date of local tax priority as an exception to the principle of local tax priority, the claims secured by the right of lease on a deposit basis, the right of pledge, or the mortgage shall be excluded from the local tax and the additional dues imposed on the property under the proviso in common.

On the other hand, although there is no separate provision regarding the statutory due date of additional dues and aggravated additional dues, pursuant to Articles 1(13 and 27(1) and (2) of the Act, if local taxes are not paid by the due date, additional dues shall be collected in addition to the notified tax amount pursuant to this Act and if the local taxes are not paid by the due date after the due date, the additional dues and aggravated additional dues shall be collected in addition to the notified tax amount pursuant to this Act. Thus, if the tax amount is not paid by the due date notified in the notice of the principal tax payment by the due date by the notice of the tax payment pursuant to Article 25 of the Act or by the due date thereafter, the additional dues and increased additional dues shall naturally become final and conclusive pursuant to the above provision without a separate final procedure as to the additional dues and increased additional dues by the tax authorities. Accordingly, the statutory due date of additional dues and increased additional dues shall be deemed to be when the liability to pay additional dues and increased additional dues becomes final, i.e., the due date notified in the notice of payment or the prescribed due date thereafter (see Supreme Court Decision 97Da.

The court below erred that the statutory due date of the additional dues on the acquisition tax and special rural development tax of this case is the time limit for payment of the acquisition tax and special rural development tax. However, since the statutory due date of the above additional dues arrives later than the date recognized by the court below, the above error by the court below does not affect the conclusion of the judgment. Ultimately, the judgment of the court below that the additional dues on the acquisition tax and special rural development tax of this case cannot be given priority to the plaintiff's collateral claim is justified. The judgment of the court below that the additional dues on the acquisition tax and special rural development tax of this case cannot be given priority to the plaintiff's collateral claim is justified. The precedents cited in the ground of appeal are related to the former Local Tax

Ultimately, the defendant's ground of appeal on this point cannot be accepted.

2. The second ground for appeal

According to the proviso of Article 31(2)3 of the Act, the so-called pertinent tax imposed on the selling property shall take precedence over claims secured by mortgage, etc. prior to the statutory due date, and Article 14-4 of the Enforcement Decree of the Act (amended by Presidential Decree No. 15211 of Dec. 31, 1996) of the same Act (amended by Presidential Decree No. 16673 of Dec. 31, 199) provides that common facilities tax shall be one of the corresponding taxes.

Article 31(2)3 of the Act aims to harmonize the judicial request to guarantee the safety of transaction with respect to the secured real right accompanying the public notice with the public interest request in order to secure the realization of tax claims. Thus, even if the pertinent tax has priority over the claims secured by the secured real right, it does not infringe on the essential contents of the secured right. Therefore, the above "local tax imposed on the property" means only the local tax imposed by recognizing the taxable capacity on the property owned by the person who acquired the secured real right, as it can be reasonably predicted that it will be imposed on the property in the future (see, e.g., Supreme Court en banc Decision 96Da23184, Mar. 18, 1999; 2000Da58088, Feb. 23, 2001).

Under Articles 239 and 241 of the Act, the fire-fighting common facility tax is imposed on a person who benefits from the facility to meet the expenses necessary for the fire-fighting system, and the imposition and collection thereof shall be governed by the Ordinance of the Special Metropolitan City, Metropolitan Cities, or Dos concerned. Under Article 32 of the Gyeonggi-do Provincial Tax Ordinance, a person liable to pay the tax on the fire-fighting facility tax is the owner of a building or ship prescribed in Article 180 of the Act on Property Tax, and is registered as the owner of the building or ship in the property tax ledger (in cases where it is unclear that the owner is the owner of the building or ship, the actual owner and the owner are the owner are the same as Article 182 (1) and (2) of the Act on a person liable to pay the property tax), the person liable to pay the tax on the fire-fighting facility is the owner of the building or the owner of the fire-fighting facility who can easily calculate the tax base of the building by taking into account the local tax imposed on May 1 and June 16 of each year.

Nevertheless, the judgment of the court below that the fire-fighting common facilities tax and additional dues in this case did not correspond to the corresponding tax on the part of the building in this case is erroneous in the misunderstanding of the legal principles on fire-fighting common facilities tax and the corresponding tax, which affected the conclusion of the judgment.

3. Therefore, the part of the judgment below regarding the fire-fighting facility tax and its additional charges is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-hun (Presiding Justice)