[배당이의][공1994.5.15.(968),1313]
(a) In case where the transferee of the mortgaged real estate is delinquent in paying the national tax, whether Article 35 (1) 3 of the former Framework Act on National Taxes is applied; and
(b) A taxpayer of the relevant gift tax;
A. Article 35(1) main text and 35(1)3 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 190) provide for the exception to the so-called tax imposed on the property, such as national taxes and additional dues, by providing for the claims secured by the mortgage, etc. preferentially protected on the national tax. Since the above provision is interpreted as a provision to the effect that it is based on the taxpayer's liability for tax payment, based on the relationship with the mortgagee at the time of establishment of the mortgage, it is interpreted as a provision that is excluded from the priority collection of the tax, such as national taxes imposed on the property that became the object of the mortgage, etc., even if the mortgagee transfers the mortgaged real estate to a third party and the third party who is the transferee was delinquent in national tax, the eligibility for the protection
B. In a case where a gift is made by a transferor of an object, the person liable to pay the gift tax, which is the pertinent tax, shall be the donee who owns the pertinent property, and on the ground that there are the provisions of Article 29-2(2) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993), the said gift tax does not change to the donor’s own tax.
Article 35(1) of the former Framework Act on National Taxes, Article 18(1) of the Enforcement Decree of the Framework Act on National Taxes, Article 29-2(2) of the former Inheritance Tax Act
A. (B) Supreme Court Decision 88Meu105 Decided October 8, 1991 (Gong1991, 2670). Supreme Court Decision 88Meu8385 Decided September 24, 1991 (Gong1991, 2589)
Korea
Seoul Trust Bank Co., Ltd., Counsel for defendant-appellee
Seoul High Court Decision 93Na18459 delivered on August 31, 1993
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
The main text of Article 35(1) and Article 35(1)3 of the Framework Act on National Taxes (amended by Act No. 1990, Dec. 31, 190) provide for exceptions to the so-called "national taxes and additional dues imposed on the property, etc., particularly with respect to the claims secured by a mortgage, etc. on national taxes. Since the above provision is interpreted as a provision on the basis of the mortgagee's liability for tax payment on the property which became the object of mortgage, etc., it is a national tax imposed on the mortgagee, etc., and even if the mortgagee transfers the mortgaged property to a third party and the third party who is the transferee was delinquent in national taxes, the eligibility for protection shall not be lost under the current law without any special provision. In addition, if the property was donated by the transferor, the person liable to pay the gift tax, which is the relevant property, is the assignee holding the relevant property, and there is a provision under Article 29-2(2) of the Inheritance Tax Act, and thus the above gift tax is not changed to his own tax on the transferor.
In the same purport, in this case where the mortgage holder, who transferred the land of this case, did not have any tax in preference to the right to collateral security of this case against the defendant bank, the gift tax, which is national tax imposed on the plaintiff to the above non-party 2 after the real estate was transferred to the non-party 2 who was the transferee of this case, shall not be collected preferentially. Accordingly, the decision of the court below that the measure of the auction court of this case, which paid the successful bid price according to the execution of the above mortgage, to the defendant who is the right to collateral security, is proper, and there is no error of law such as the theory of lawsuit.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeong Jong-ho (Presiding Justice)