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조세심판원 질의회신 | 2008-07-24 | 기획재정부조세정책과-488 | 기타

Document Number

Ministry of Strategy and Finance Tax Policy-488 (Law No. 25, 2008)

Items of Taxation

national discipline;

Journal

Where the sale price is paid in full before the registration of ownership transfer for the shares in an aggregate building and the registration of ownership transfer for a section for exclusive use is completed, the ground for cancellation of

Congress RESALS

If the sale price is paid in full before the registration of ownership transfer for the shares in an aggregate building, such as E-Question, and the registration of ownership transfer for the shares in exclusive ownership is completed, it falls under Article 53 (1) 2 of the National Tax Collection Act.

Related statutes

Article 53 of the National Tax Collection Act

Main text

1. A summary of the contents of inquiry;

○ Facts

- After the transfer of ownership on the land owned by o(o) on the ground of trust to the Korea Housing Guarantee Company, Xx Construction is constructed and completed in apartment buildings;

- Transfer of land ownership to o for the replotting procedure and division registration of land portion (the ground for termination of trust, June 9, 206)

- The seizure of the land in the Atax secretary book with the default of o (1 billion won) (3 March 26, 207)

- The Korea Asset Management Corporation has requested the public sale of land ( March 30, 207) but is released from the public sale by proxy due to the impossibility of appraisal ( December 28, 207)

- The occupant of apartment house(00 households) is required to cancel the attachment because it is not possible to exercise the property right due to the attachment of the tax office even though the purchase price has been fully paid.

○ Contents of questioning

- If the third party's claim on ownership after the attachment is deemed reasonable, the director of the tax office shall release the attachment (Article 53 of the National Tax Collection Act).

- A seizure at the competent tax office due to delinquency in the exercise of the City with respect to the land owned by the executor on the mid-to-land registry for apartment sale;

-whether the attachment should be cancelled on the ground that the tenant's request for release of attachment was reasonable for the full payment of the pre-sale price;

2. Materials on the contents of questioning;

(a) relevant tax laws and regulations (law, enforcement decree, enforcement rule, basic rules);

○ Article 53 of the National Tax Collection Act 【Requirements for Release of Attachment】 (Article 53 of the National Tax Collection Act amended on December 31, 2007)

(1) The head of a tax office shall immediately release the attachment in cases falling under any of the following subparagraphs:

1. If the attachment is no longer needed because of payment, appropriation, suspension of a public auction, cancellation of the imposition, and other reasons;

2. Where the justification for the third person’s claim on the ownership under Article 50 is deemed to be reasonable; and

3. If the third person proves that he has obtained a favorable judgment of the court in the lawsuit on the ownership against the defaulted taxpayer.

(2) The director of the tax office may release the attachment of a property partially or wholly in cases falling under any of the following subparagraphs:

1. If the price of the property conspicuously exceeds the total amount of the delinquent amount due to the price fluctuation and other reasons after the attachment;

2. If the delinquent amount related to the attachment is partially paid or appropriated;

3. If the imposition is partially cancelled; and

4. When other attachable properties provided by the defaulted taxpayer are attached.

○ Article 50 of the National Tax Collection Act 【Third Party’s Claim on Ownership】

The third person who desires to get back the attached property by claiming its ownership, shall submit those documents proving the ownership to the director of the tax office at least five days prior to its sale.

【Third Party’s Claim for Ownership】

(1) When a third person claims the ownership of the attached property and requests return thereof pursuant to the provisions of Article 50 of the Act, the tax official shall suspend the execution of the disposition for arrears concerning the property.

(2) If the revenue official deems that the request under paragraph (1) is well-grounded, he shall release the attachment without delay and if the reason is unfair, he shall notify it to the appellant without delay.

(3) If any claimant fails to prove the fact that he has instituted a lawsuit against the defaulted taxpayer on the property within fifteen days after receiving the notification under paragraph (2), the tax official shall continue the disposition for arrears without delay.

○ Ownership Claim by 50-01 General Rules of National Tax Collection Act 50-01

The owner of the third person's ownership shall claim that the attached property has already been reverted to the third person at the time of seizure, and that the third person has preferential status to the owner of the attached property (the new date February 5, 198).

○ Article 24 of the National Tax Collection Act (amended on December 31, 2007)

(1) The tax officials shall seize the taxpayer’s properties in cases falling under any one of the following subparagraphs:

1. Where the taxpayer fails to pay completely national taxes and the additional dues by the designated period after receiving a notice of demand (including a peremptory notice; hereinafter the same shall apply);

2. If the taxpayer fails to pay completely the tax by the designated period after receiving a notification of tax payment before the payment period under Article 14 (1); and

○ General Rule 24 of the National Tax Collection Act - 02 Reversion of Property

(1) The property to be seized shall revert to the defaulted taxpayer at the time of seizure.

(2) If any property falls under any of the following subparagraphs, it shall be presumed to revert to the defaulted taxpayer:

3. That the holder of a title of the registration or record shall be a delinquent taxpayer (amended by August 31, 1994), such as real estate, ships, construction machinery, automobiles, aircraft and telephone subscription rights, superficies, mining rights, etc., and patent rights and other intangible property rights, etc.

○ Effect of the seizure of the Special Rules of the National Tax Collection Act 24-02

Attachment is effective to prohibit the legal or factual disposal of the property which has become the object of attachment.Therefore, the legal or factual disposal of the property after attachment cannot be set up against the State which is the execution creditor. In this case, the legal or factual disposal prohibited by attachment is limited to the disadvantage of the State which is the execution creditor, and it does not include disposal favorable to the State (e.g. the cancellation of the lease contract concerning the attached property)

Article 2 (Definitions of Multi-Unit Residential Building Act)

For the purpose of this Act,

(a)“Sectional Ownership” means the ownership, the object of which is the part of the building (except for the section for common use pursuant to the provisions of paragraphs 2 and 3 of Article 3) provided in Article 1 or 1bis;

2. The term “sectional owner” means a person who has sectional ownership;

3. The term “section for exclusive use” means the section of the building which is the object of sectional ownership;

4. The term “section for common use” means a part other than that of exclusive ownership, the accessory to the building not belonging to the section for exclusive use, and the accessory to the building which has become the section for common use pursuant to Article 3 (2) and (3);

(e)“Building site” means the land on which a building to which the section of exclusive ownership belongs is located and the land which becomes the site of the building in accordance with the provisions of Article 4;

(vi)“right to use site” means the right which the sectional owner has against the site of the building in order to own that section of exclusive ownership;

Article 20 of the Multi-Unit Residential Building Act (Indivisibility of Section for Exclusive Use and Right to Use Site)

(1) A sectional owner's right to use site shall follow the disposition of his section of exclusive ownership.

(2) A sectional owner shall not dispose of the right to use site independently from his section of exclusive ownership: Provided, That this shall not apply if otherwise prescribed by the regulations.

(3) The prohibition of separate disposition under the main sentence of paragraph (2) shall not be effective against the third party who has acquired the real right in good faith unless the purport thereof is registered.

(4) Article 3 (3) shall apply mutatis mutandis to the proviso to paragraph (2).

(b) Established (established rules, interpretation cases, review, adjudication, judicial precedents, etc.);

○ Gyeongwon technique 46101-157, 196 May 16, 1996

The fact that a third party to the attached real estate has fully paid the purchase price before the seizure by the head of the tax office according to a sales contract with the delinquent taxpayer, and thereafter has passed the registration of ownership transfer for the relevant real estate after the seizure, does not correspond to the justifiable reasons for claiming the ownership of the attached real estate and claiming the return thereof by the third party under Article 50 of the National Tax Collection Act and Article 55 (2

Supreme Court Decision 2004Da742 Decided March 10, 2006

[1] Where a constructor of an aggregate building purchases the relevant site, but has yet to complete the registration of ownership transfer, and constructs an aggregate building on the ground, the validity of a sales contract is the validity of the right to possess and use the site. In such a case, even though the building constructor of an aggregate building purchases the exclusive ownership and the share of the site in the form of sale and pays the price in full, the actual requirements for acquiring ownership are met, but a person who has completed only the registration of ownership transfer for the exclusive ownership and failed to complete the registration of ownership transfer due to the above circumstances also has the right to occupy and use the site of a building for the ownership of the exclusive ownership as the validity of a sales contract. Such right of possession and use is a right different from a mere right of possession and use, which is the right of a sectional owner under Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings to own the exclusive ownership.

[2] Article 20 of the Act on the Ownership and Management of Aggregate Buildings provides that a sectional owner's right to use a site shall follow the disposition of his/her exclusive ownership (Paragraph 1), and that a sectional owner shall not dispose of his/her right to use a site separately from his/her exclusive ownership unless otherwise provided by the regulations or notarial deeds (Paragraph 2 and 4), and that the prohibition of separate disposition shall not oppose a third party who has acquired a real right in good faith without registering its purport (Paragraph 3). The purport of the above provision is to prevent the separation of his/her exclusive ownership from the exclusive ownership of an aggregate building and the right to use a site from the occurrence of a sectional ownership without the right to use a site by preventing the occurrence of a legal stability and reasonable regulation

[3] The case holding that the attachment and provisional attachment against the owner's right to claim the transfer registration of ownership of the land owned by the Korea Water Resources Corporation is not effective because the owner of an aggregate building purchased the land from the Korea Water Resources Corporation results in a separate disposal of the section of exclusive ownership and the land, in case where the creditors of the building owner completed the construction and completed the registration of ownership transfer in the name of the owner of the building as to the new building and completed the registration of ownership transfer in the name of the buyer

Supreme Court en banc Decision 98Da45652, 45669 Decided November 16, 200, 200 【Real Name Map, etc. of Building or Unjust Enrichment】

[1] In the case of a large-scale aggregate building, such as an apartment building, a lot of land, delay in the procedure for subdivision, lot of land substitution, delay in the decision on the ratio of shares per household, etc., the transfer registration of ownership to the section for exclusive use is completed in the future through the buyer, and the registration of ownership transfer to the portion for a considerable period of time has been delayed. In this case, the actual requirements for the acquisition of ownership by purchasing the section for exclusive use and shares in the form of sale from the constructor of an aggregate building together with the proceeds in the form of sale, and paying the proceeds in full. However, in the case of the portion for exclusive use, a person who has received only the ownership transfer registration for the portion for exclusive use and has not yet completed the registration of ownership transfer due to the above reasons has the right to possess and use the site of a building in order to own the portion for exclusive use as a result of the validity of a sales contract. Such right to possess and use is a right different from a mere right to possess a lot of land, which is the right of exclusive owner under Article 2 subparagraph 6 of the Multi-Unit Building Act.

[2] In full view of the contents and legislative intent of the Act on the Ownership and Management of Multi-unit Building, in a case where it is anticipated that the registration of the housing site portion was made at the same time with the registration of the section for exclusive use in the absence of such circumstances as the delay in the division, combination and replotting procedure of the housing site, delay in the determination of the ratio of shares per household, etc., if the registration of the housing site portion is expected to have been made, even though the ownership transfer was made only with respect to the section for exclusive use, the number of buyers possessing the housing site based on the right to possess and use the housing site held on the buyer's status, cannot dispose of the right to use the housing site, which is the right to possess and use the housing site, before the registration of ownership transfer of the housing site portion is made, separately from the section for exclusive use, and the