국세 체납액 수납의 우선순위 여부[국승]
Whether the receipt of national taxes in arrears is priority;
In the course of performing a tax claim, it is reasonable to deem that there was an implied agreement between the person effecting the claim and the defendant who is the recipient of the payment, or at least one of the persons performing the payment or the recipient of the payment was designated or appropriated.
Article 476(2) of the Civil Act
1. The claim of this case is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
With respect to a case of auction of real estate (No. 2005 Doz. 00000), the above court shall have jurisdiction over the auction of real estate (No. 206).
Of the dividend table prepared, the amount of 81,255,249 won against the plaintiff shall be 116,708,469 won, and the amount of 35,453,220 won against the defendant shall be corrected to 0 won, respectively.
1. Basic facts
A. On January 15, 2004, in order to secure loan claims against ○○ Construction Co., Ltd. (hereinafter “Non-Party Co., Ltd.”), the Plaintiff made a registration of creation of a first priority mortgage (hereinafter “real estate”) with respect to Non-Party Co., Ltd. 2, 00, 1603m2 (hereinafter “non-Party Co., Ltd.”) owned by Non-Party Co., Ltd., 2, 1603m2 (hereinafter “non-Party Co., Ltd.”), 200, 000, 00 ○○○ registry of ○0,000, 000, 1400, 205m2, 300,0000,000 won, 200,000,000 won, 20,000 won, which is 5,000,000 won, 20,000 won.
2. Determination
A. The plaintiff's assertion
(1) In the auction of this case, since the statutory date for the taxation claim of this case, which was distributed by the defendant, is prior to the date of creation of the plaintiff's collateral security, it is true that priority is given to dividends. However, the defendant's filing of a claim for delivery as the taxation claim of this case is unlawful for the following reasons. Thus, the dividend of this case, which was based on
(2) During the period from May 4, 2004 to January 17, 2005, the Defendant received a total of KRW 112,140,000, which is a part of the total amount in arrears from the non-party company, the taxpayer, from the non-party company. The Defendant and the non-party company, at the time of the above repayment, did not have any special agreement on appropriation or designated appropriation. Thus, the above amount of repayment must be appropriated for each tax claim under Article 477 of the Civil
(3) According to the principle of statutory appropriation of performance under the Civil Act, where all obligations are due and all other obligations are equal, the first priority should be given to the repayment of the obligations that have become due among those claims against the non-party company. The above repayment amount should have been first appropriated for the instant tax claim, which is the due date among the respective tax claims against the non-party company.
(4) Nevertheless, the Defendant, contrary to the above principle, appropriated the repayment amount for the repayment of other taxation claims which are late after the payment deadline for the instant taxation claims, thereby including the instant taxation claims as the subject of the claim for issuance of auction of the instant case without extinguishment of the repayment due. Such an act by the Defendant is unlawful since it infringes on the expectation interest of the Plaintiff’s dividends, which are senior collateral security interests, thereby abusing the discretion of the
B. Determination
Therefore, we examine whether the defendant's act of appropriating the above amount of the taxation claims of the non-party company was illegal or not. The provisions of the Civil Act for appropriation of the above amount of the taxation claims of the non-party company apply only to the non-party company's act of appropriating the above amount of the taxation claims of the non-party company without any agreement between the parties to the repayment and the designation of the party to the repayment. Here, the appropriation agreement or designation appropriation does not necessarily have to be explicitly explicitly stated. According to the evidence Nos. 1 and 2, the defendant issued and notified individual tax payment notices to the non-party company which is the taxpayer, and as a result, it was 12,140,00 won in total five times from May 4, 200 to January 17, 2005 or 100 won in total, and it was 14,545,471.74.20 of the taxation claims of the non-party company's total amount of the value-added tax claims of the non-party company.
Therefore, it cannot be deemed that there is any error of law in the dividend file of this case, which distributes money to the tax claim of this case at the time of the auction of this case, on the ground that other tax claims have been repaid first in accordance with the appropriation agreement or designated appropriation in the above repayment process, and there is no other evidence to find otherwise that the dividend of this case is illegal. Thus, the plaintiff's above assertion on a different premise is without merit.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.