압류가 유지되어 조세채권 소멸시효가 중단된 것으로 보아야 함[국승]
It shall be deemed that the extinctive prescription of a taxation claim has been interrupted due to its retention.
Inasmuch as a seizure was made before five years elapse from the extinctive prescription period based on the pre-paid tax claim, there was a tax claim that became due later, and the seizure was maintained until the time the dividend was received according to the request for delivery, all of the tax claims stated in the written request for issuance should be deemed as having become invalid.
Article 28 (Interruption and Suspension of Prescription)
Article 47 (Effect of Seizing Real Estate, etc.)
2011 Bada 51437 Return of Fraudulent Gains
XX Limited Liability Company
Korea
January 18, 2012
February 15, 2012
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
42,241,880 won and 41,762,470 won among them, which is calculated by the rate of 20% per annum from the following day of service of the complaint to the day of full payment.
1. Basic facts
A. Korea-A-owned Seoul XX-dong 000-000, the Seoul Central District Court (hereinafter referred to as the "instant auction procedure") requested the Defendant to collect the delinquent tax (total 41,762,470 won) on October 29, 2009, as stated in the separate request form.
B. On June 11, 2010, a date of distribution, the execution court distributed KRW 4,004,096 to the creditor OF Co., Ltd., and the Defendant distributed KRW 41,762,470 to the Defendant the amount of the above request for delivery. The Defendant received all the dividend amount.
[Reasons for Recognition] Unsatisfy, Gap 1 and 2 evidence, the purport of the whole pleadings
2. The plaintiff's assertion
The Plaintiff is a creditor who received the claim against HanA from △△ Bank, △△△ Asset Management Specialized Company, OB Loan Co., Ltd., and received the succeeded execution clause against the Seoul Central District Court Decision 2000Kadan114245 decided between △△ Bank and HanA.
A claim that the Defendant received in the auction procedure of this case is received by the Defendant at the lapse of five years without justifiable grounds for the interruption of prescription.
Since the Plaintiff acquired the claim against Han-A as well as the claim for return of unjust enrichment against the Defendant while taking over the claim against Han-A, the Defendant is obligated to return the said dividend received from the Plaintiff without any legal reasons.
3. Determination
A. The Plaintiff’s assertion is based on the premise that the statute of limitations on the tax claim against Korea-A claimed by the Defendant for delivery has expired, and thus, is examined as to this.
B. The extinctive prescription of the right to collect national taxes or local taxes is suspended for five years, while the seizure of the property of a delinquent taxpayer is in existence (Article 28(1) and (2) of the Framework Act on National Taxes). Article 47(2) of the National Tax Collection Act provides that “The seizure of real estate, etc. under Article 45 of the same Act shall also have effect on the delinquent amount of national taxes, the statutory due date of which comes before the transfer of the ownership of the relevant attached property.” If the seizure is registered one time, the seizure shall have effect on the delinquent tax amount arising after the registration of the seizure against the same person as a matter of course without a new seizure registration (see, e.g., Supreme Court Decision 2005Da11848, Dec. 14, 2007).
C. In full view of the purport of the entire pleadings in Eul evidence Nos. 2 and Eul Nos. 4 through 7 (including provisional numbers), the defendant may recognize the fact that the tax claim was sold to a third party due to a compulsory auction on Apr. 21, 1999 through Nov. 30, 200 with the payment period for Han Han-si prior to Mar. 15, 2001. The defendant attached an additional tax claim for the tax claim on Feb. 1, 2004, the defendant may recognize the fact that the real estate of this case was sold to the third party by a compulsory auction on Apr. 26, 2011. < Amended by Presidential Decree No. 17213, Mar. 15, 2001>
D. According to the above facts, when the payment period was based on the pre-paid tax claim on April 21, 199, the aforementioned seizure was maintained until June 201, 2010, when the Defendant received dividends from the pre-paid tax claim, the period for payment was five years after the lapse of the extinctive prescription period of the tax claim, and there was a tax claim on February 1, 2004, which was the statutory due date thereafter. < Amended by Act No. 7208, Feb. 1, 2004>
In addition to the above legal principles, the whole claim stated in the attached request for issuance should be deemed to have an effect of interrupting prescription. Therefore, the plaintiff's claim on the premise that the Defendant's tax claim has extinguished by prescription is without merit.