[법인세등부과처분취소][공1988.4.1.(821),536]
Where the ownership of real estate owned by a person who has pledged his/her property by voluntary auction is transferred, the person to whom capital gains
In the voluntary auction for the enforcement of the right to collateral security, the successful bidder succeeds to and acquires the ownership of the property subject to collateral security by realizing the contents of the right to collateral security. Therefore, even if the establishment registration of a collateral on the basis of the voluntary auction was conducted as the collateral guarantee for the third party's obligation, the transferor of the object of auction is the surety and the successful bid price belongs to the capital gains of the surety who is the owner of the object of auction, and even if the exercise of the right to collateral was de facto impossible due to the insolvency of the principal debtor, such circumstance does not affect
Article 23 of the Income Tax Act
Supreme Court Decision 86Nu60 Decided May 27, 1986, 86Nu736 Decided September 23, 1986
Attorney Go Jae-ho et al., Counsel for the defendant-appellant
Head of Dong Tax Office
Seoul High Court Decision 87Gu459 delivered on August 31, 1987
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
In a voluntary auction for the execution of a right to collateral security, the successful bidder succeeds to and acquires the ownership of the property subject to collateral security by realizing the contents of the right to collateral security. Thus, even if the establishment registration of a mortgage in the nearest area, which is the basis of the voluntary auction, was conducted as the collateral guarantee for the third party's obligation, the transferor of the object of auction is the surety and the successful bid price shall also belong to the property of the surety, who is the owner of the object of auction. Therefore, it cannot be said that it is merely the nominal owner of the property belonging to the income
In addition, the right to indemnity against the principal debtor of the surety's principal debtor is appropriated for the repayment of the secured obligation in which the principal debtor bears, and the effect of subrogation is not derived from the effect of payment of the secured obligation, but according to the compensatory nature of the auction, so even if the exercise of the right to indemnity has become virtually impossible due to the insolvency of the principal debtor, such circumstance does not affect the conclusion of capital gains (see Supreme Court Decision 85Nu736 delivered on September 23, 1986).
Therefore, the court below is just in holding that the registration of establishment of a mortgage on the real estate owned by the plaintiff was completed as a real guarantee for the bank debts of the non-party company, and that the real estate was adjudicated as a successful bid of KRW 62,90,000, and that the calculation of corporate tax and defense tax is lawful on the basis of the above amount. There is no error in the misapprehension of legal principles as
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-chul (Presiding Justice)