[부당이득금][공1997.5.15.(34),1423]
Time of determining priorities with secured claims, such as local taxes, additional charges, and mortgages;
According to the provisions of Article 31(1) and (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994), local taxes and additional dues are collected in preference to public imposts and other claims in principle. However, in cases where local taxes and additional dues are collected from among the amounts arising from the sale of property which is the object of lease on a deposit basis, pledge right, or mortgage established before the tax base date or tax liability date of local taxes is established, claims secured by such mortgage, etc. cannot be preferentially collected. Thus, local taxes and additional dues may be preferentially collected for claims secured by a mortgage established after the tax base date or tax liability is established. In this case, the tax base date or tax liability date at this time refers to the main tax base date when considering the expression of the law, and it is clear that the priority between additional dues and secured claims, such as mortgage, should be based on the date on which the principal tax base date or
Article 31(1) and (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994)
Supreme Court Decision 88Da105 Decided October 8, 1991 (Gong1991, 2670), Supreme Court Decision 91Da42524 Decided January 17, 1992 (Gong1992, 867), Supreme Court Decision 95Da5113 Decided March 8, 1996 (Gong196Sang, 1215)
[Defendant-Appellee] Defendant 1 (Attorney Kim Ba-young, Counsel for defendant-appellee)
Busan Metropolitan City (Attorney Lee Jae-soo, Counsel for defendant-appellee)
Busan District Court Decision 95Na4435 delivered on August 14, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
1. On the first ground for appeal
According to the provisions of Article 31(1) and (2) of the Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994; hereinafter the same shall apply), local taxes and additional dues may be collected in preference to public charges and other claims in principle. However, in cases where local taxes and additional dues are collected from the amount arising from the sale of property which is the object of lease on a deposit basis, pledge right, or mortgage (hereinafter referred to as "mortgage, etc.") established prior to the date on which the tax base date or liability for payment of local taxes is established, local taxes and additional dues may be preferentially collected for claims secured by the mortgage, etc.
However, according to the facts duly established by the court below, it can be seen that the date of acquisition of the land of this case on April 10, 1992, and the date of registration of the creation of the right to collateral security of this case on June 25, 1992 is that the date of registration of the establishment of the right to collateral security of this case is June 25, 1992. Thus, it is clear that the date of establishment of acquisition tax liability pursuant to Article 29(1) of the Act is April 10, 1992, and therefore, the secured claim of the right to collateral security of this case cannot be considered to have priority over the local tax of this case as well as its additional dues and increased additional dues. The reasoning of the court below is different, and the conclusion that the additional dues of this case and increased additional dues were priority over the secured claim of this case on collateral security of this case is justified, and therefore, it cannot be viewed
2. On the second ground for appeal
According to Article 120(1) of the Act, acquisition tax shall be reported within 30 days from the date of acquisition of the object of taxation, and at the same time, the amount of tax calculated by applying the tax rate under Article 112 of the Act to the reported tax base amount. According to Article 121(1) of the Act, where a person liable to pay acquisition tax fails to file a voluntary report or pay, penalty tax shall be collected. Thus, penalty tax shall be established when 30 days have passed from the date of voluntary report.
Therefore, the establishment date of the liability to pay additional tax of this case shall be May 11, 1992, which passed from April 10, 1992, the acquisition date of the real estate of this case, and the secured debt of this case shall not have priority over the additional tax of this case. The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal. The ground of appeal pointing this out shall not be accepted.
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Park Jong-chul (Presiding Justice)