근저당권 피담보채권보다 양도소득세 채권이 우선하므로 배당표는 적법함[국승]
The distribution schedule is legitimate because capital gains tax claims are greater than those secured by the right to collateral security.
The tax authorities have determined the transfer income tax to be paid on the non-reported transfer income tax and sent a tax notice. In this case, the statutory due date of the transfer income tax is the date of the tax notice, which is earlier than the date of the plaintiff's establishment of the right to collateral security.
2012 Single 6806 Distribution
NewA
Korea
August 14, 2012
September 11, 2012
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Of the dividend table prepared by the above court on February 10, 2012, the amount of dividends to the defendant shall be KRW 000,000, and the amount of dividends to the plaintiff shall be KRW 000,000, among the dividend table prepared by the above court on February 10, 201 with respect to the voluntary auction of real estate (No. 7409).
1. Facts recognized;
A. On December 10, 2008, No. 17399, with respect to each land share (hereinafter “instant land”) indicated in the separate sheet owned by ParkB on December 10, 2008, Nonghyup completed the registration of creation of a mortgage over the maximum debt amount of KRW 000 with respect to each land share (hereinafter “instant land”), and the Plaintiff also completed the registration of establishment of a mortgage over the said land as the receipt of the said registration office on December 22, 2009 with the maximum debt amount of KRW 000,000, as the maximum debt amount of KRW 14588.
B. On the other hand, around February 28, 2006, ParkB made a decision that the transfer income tax to be paid by Parkwon-gun, Kuwon-gun, Kimwon-gun was KRW 000,00 and KRW 35, and around July 31, 2006, the O-ri O-ri (O000, and KRW 17,000, and around August 17, 2006, the O-ri (O2601, and 17, an O-ri (O-ri) was not reported on the transfer income tax even after he transferred the land to Parkwon-gun-gun, Kuwon-gun, Kuwon-gun, Kuwon-gun, and the tax notice was sent to ParkB on July 3, 2009 ( evidence 12 and 2).
C. On March 7, 2011, 201, NAC filed an application for auction on the above land with the collateral security and filed an application for a voluntary auction procedure with the competent court around 7409, and on April 14, 2011, prior to the expiration date of the demand for distribution (as of May 27, 201) by the Defendant, NAC filed a request with the competent court for delivery of the same content as 1 of the [Attachment], and thereafter, the additional dues increase thereafter, the request for delivery was filed on November 24, 201 / [Attachment] 2 of the said Table, and on January 13, 2012 / [Attachment] / [Attachment] 3 times the same content as the distribution request.
[Attachment] (Attachment]
D. On February 10, 2012, the court of auction prepared a distribution schedule to distribute the amount of KRW 000,000, out of the amount to be actually distributed after deducting the auction expense on the date of distribution, to the Iron-gun, and KRW 00,00,000, to the defendant, who is the holder of the right to deliver the money, and to distribute the amount of KRW 00,000,000,000, to the defendant who
E. On February 16, 2012, the Plaintiff stated an objection against the total amount of dividends to the Defendant on the aforementioned date of distribution, and filed a lawsuit of demurrer against the Defendant on February 16, 2012, which was within one week from the date of the distribution.
[Based on Recognition] The facts without dispute, Gap evidence 1, Eul evidence 2, Eul evidence 1 to 13, Eul evidence 2, and Eul evidence 2, and the purport of the whole pleadings
2. Plaintiff’s assertion and judgment thereon
A. The plaintiff first, because the date of establishing the plaintiff's right to transfer income tax is more rapid than the legal date of the defendant's transfer income tax, the auction court recognizes the defendant's transfer income tax claim as the right which takes precedence over the plaintiff's secured claim, and prepares the distribution schedule of this case. In allocating the proceeds from sale of the property which is the object of the right to collateral security in the real estate auction procedure, the priority relationship between the tax claim and the secured claim was reached after the legal date of the right to collateral security and the date of the establishment of the right to collateral security (Article 35 (1) of the Framework Act on National Taxes). Meanwhile, the legal date of national tax is ① for national tax for which the duty to pay tax is fixed by tax base and tax return (including corporate tax and value added tax paid by interim prepayment), ② for the notified tax amount, the tax base and tax amount is more than 200 days after the date of sending the tax notice, and so, it cannot be accepted that the plaintiff's transfer income tax of this case 2000 won and 200.
B. The Plaintiff, and even though ParkB owned property other than the instant land, the Defendant did not take measures such as seizure on other property and claimed only for the sale price of the instant land, and the Defendant did not distribute the entire transfer income tax to the Defendant, but should distribute only the transfer income tax equivalent to the percentage of the value of the instant land among the entire property of ParkB. However, even if ParkB had other property, the Plaintiff’s assertion on this part cannot be accepted in the instant dividend procedure, since there is no ground for allocating only a part of the transfer income tax, which is not the entire transfer income tax, in the instant dividends procedure.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.