2. The costs of the lawsuit are assessed against the defendant.

A. On September 4, 2013, the Plaintiff entered into a loan transaction agreement with a non-party 430,000,000 won for the lending limit, and completed the registration of establishment of a neighboring mortgage (hereinafter referred to as the "mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed 00,000,000 won for the maximum debt amount on August 30, 2013 with respect to the ○○○○○○○○○○ ○○ ○○ ○ ○ ○ ○ ○ ○5-22, 455 square meters (hereinafter referred to as the "real estate of this case") owned by the non-party A and the non-party ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

B. On the other hand, around April 10, 2012, the above Nam A sold 32-1 square meters prior to 32-1,203 square meters prior to ○○○○○○○○○-gun, ○○○○○○○-gun, 748 square meters prior to 3-1, and 1,536 square meters of a Ri cemetery to Nonparty A Co., Ltd., and on May 11, 2012, the above Nam A completed the registration of ownership transfer of each of the above real estate to the said ○○○○○-gun, ○○○○-gun, ○

C. However, South AA did not report the tax base of capital gains by May 31, 2013, which was the final return date of capital gains tax on the transfer of the said land, and submitted the return of tax base after the due date of tax return on July 10, 2013, and did not pay the said tax amount.

D. Accordingly, on October 1, 2013, the Defendant notified the South A of KRW 344,711,720 of the transfer income tax for the payment period on October 31, 2013 (hereinafter “instant transfer income tax”).

E. Since then, on February 27, 2014, upon Nonparty 1’s application, Nonparty 1, a subordinated mortgagee, filed a claim for the issuance of the instant real estate by asserting that: (a) on March 10, 2014, the auction procedure was initiated by Changwon District Court was around 2014, the Changwon District Court was located; and (b) on March 10, 2014, the Defendant filed a claim for delivery of KRW 371,59,230, totaling KRW 371,59,59,230, and KRW 430,000,000, and KRW 17,223,561, KRW 47,236,2561, KRW 2361, KRW 561, KRW 2561, KRW 2561, KRW 20, KRW 561, May 29, 2015.

F. In the above auction procedure on January 29, 2015, the court prepared a distribution schedule with the content that distributes the remaining 16,523,660 won to the Plaintiff as a creditor of each of the 33,047,320 won to be actually distributed to the Plaintiff and the Defendant (BB tax secretary), and the Plaintiff was present on the said distribution date and raised an objection against the total amount of dividends to the Defendant.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 7 (including paper numbers), Eul evidence 1;

The purport of all pleadings

2. The plaintiff's assertion

The Plaintiff completed the establishment registration of the instant neighboring mortgage on August 30, 2013, before the Defendant sent a notice for payment of the transfer income tax of this case to South AA on October 1, 2013. Therefore, it is unreasonable to view the Plaintiff and the Defendant as the creditor in the same order and distribute the same amount as the Plaintiff and the Defendant, even though they had the right to receive dividends in preference to the Defendant’s national tax claim.

3. Relevant statutes;

former Framework Act on National Taxes (Amended by Act No. 12162, Jan. 1, 2014; hereinafter the same shall apply)

Article 35 (Priority of National Taxes)

(1) National taxes, surcharges, or expenses for disposition on default shall be collected in preference to other public charges or claims: Provided, That this shall not apply to any of the following public charges or other claims:

3. Where any national tax or additional dues (excluding national taxes and additional dues imposed on the property) is collected from the proceeds of sale of the property for which the fact that the establishment of the right of lease on deposit basis, the pledge right or the mortgage has been registered before any of the following dates (hereinafter referred to as "legal due date") is proved as prescribed by Presidential Decree, the claims secured by the right of lease on deposit basis, the pledge right

(a) In cases of a national tax for which a duty to pay taxes is determined based on the tax base and return of amount of tax (including interim prepayment corporate tax and value-added tax paid by preliminary return), the date of return;

(b) Where the Government determines, revises, or occasional assessment of a tax base and tax amount, the date of sending a tax notice for the notified tax amount;

Article 45-3 (Returns Filed after Deadline)

(1) A person who fails to file a tax base return by the statutory due date of return may file a return after the due date of return before the head of the competent tax office determines and notifies the tax base and amount of the relevant national tax (including additional taxes under this Act and other tax-related Acts; hereafter the same shall apply in this Article) pursuant to the tax-related Acts: Provided, That

(2) A person who files a return after the due date of tax return pursuant to paragraph (1) and is liable to pay the tax shall pay the tax simultaneously with a return after tax return.

(3) The head of a competent tax office shall, where a return of tax base after the due date is filed pursuant to paragraph (1) (limited to where the amount of payable taxes are paid), determine the tax base and the amount of the relevant national tax pursuant to the tax-related Acts.

former Income Tax Act (Amended by Act No. 12169, Jan. 1, 2014; hereinafter the same shall apply)

Article 114 (Determination, Revision and Notification of Tax Base for Transfer Income and Amount of Tax)

(1) If a person liable to file a preliminary return under Article 105 or a person liable to file a final return under Article 110 fails to file such return, the head of a regional tax office or the director of a regional tax office having jurisdiction over the place of tax payment shall determine the tax base

4. Determination

In full view of the contents and legislative intent of the aforementioned relevant provisions, even if a person liable to pay capital gains tax submits a return of tax base and the amount of tax after the due date of tax return pursuant to Article 45-3(1) of the former Framework Act on National Taxes, such tax liability shall be determined only when the head of the competent tax office determines the tax base and the amount of tax (see Supreme Court Decision 2010Da88415, Aug. 30, 2012). Therefore, it is reasonable to interpret that the statutory due date of tax payment is not the date of submission of the return of tax base after the due date of tax base but the date of payment notice (see Supreme Court Decision 2010Da8415, Aug. 30, 2012). In full view of the aforementioned relevant statutes and legal principles, the statutory due date of the capital gains tax in this case shall be deemed as the

Therefore, as a creditor who completed the registration of creation of a mortgage on August 30, 2013, which was prior to the statutory due date of the Defendant’s taxation claim, the Plaintiff is entitled to receive a dividend of the secured debt of the right to collateral security prior to the Defendant. Therefore, it is reasonable to rectify the amount of KRW 33,047,320, the total amount of the dividend amount of the Plaintiff’s dividends of KRW 166,523,660, and KRW 166,523,660, among the instant dividend table, to KRW 0.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.