Any disposition of attaching trust property on the grounds of delinquency of the truster shall be null and void.

A seizure of the trust property belonging to the trustee on the grounds of the truster's taxation claim even if the truster of the trust property is the taxpayer shall be null and void as a seizure for the property of a third party.

Article 24 (1) of the National Tax Collection Act

2011Guhap8575 Nullification of a seizure disposition

XX Real Estate Trust Corporation

Head of Ansan Tax Office

September 29, 2011

October 27, 2011

1. It is confirmed that the Defendant’s disposition of seizure on the real estate listed in the attached list No. 1 on May 12, 201 is null and void.

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

The same shall apply to the order.

1. Details of the disposition;

A. On October 27, 2005, the plaintiff is a corporation mainly engaged in the trust of real estate and business related thereto, and entered into a real estate security trust agreement (hereinafter referred to as "title trust agreement of this case"), the main purpose of which is to preserve and manage the trust real estate of this case and to settle the realization and settlement of the trust real estate of this case, and completed the registration of transfer of ownership in the name of the plaintiff with respect to the trust real estate of this case, which is based on the trust of this case, the truster and beneficiary of this case, and two other parties, the debtor, BB, trustee, and priority beneficiary of this case.

B. On May 12, 2011, the Defendant seized the instant seized real estate (hereinafter referred to as “instant disposition”) based on delinquent tax claims (hereinafter referred to as “instant tax claims”) as indicated below against Western on May 12, 201, and the attachment registration was completed on May 18, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Eul evidence 1, Eul evidence 1, the purport of the whole pleadings

2. Determination on this safety defense

As to the Plaintiff’s lawsuit of this case seeking confirmation as to the trustee’s property, which is a third party’s property, the disposition of this case is null and void. The Defendant, even if there is a defect in the disposition of this case on home, cannot be viewed as a mere cause of revocation and a cause of invalidation. Thus, the Defendant’s defense to the effect that the lawsuit of this case brought without going through the previous trial procedure is illegal as it fails

However, as in the instant lawsuit, there is no need to go through a prior trial procedure in a lawsuit seeking confirmation of invalidity of an administrative disposition as in the instant lawsuit, and whether the grounds for invalidation alleged in the lawsuit are mere mere grounds for revocation is to be determined within the instant lawsuit. As such, the first Defendant’s defense on a different premise is without merit.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition against the Defendant’s seizure of the instant seized real estate, which is the Plaintiff’s entrusted property, based on the instant taxation claim against the Western, was conducted in violation of Article 24(1) of the National Tax Collection Act setting the object of seizure as the taxpayer’s property, and Article 21(1) of the Trust Act prohibiting compulsory execution against the trust property, and thus, is unlawful and unreasonable. As such, the defect is significant and obvious.

(b) Related statutes;

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) According to the provisions of Article 24 of the National Tax Collection Act, which provides for the requirements for seizure as a disposition on default, in any case or where the subject matter of seizure is limited to the taxpayer’s property, a disposition of seizure against a third party’s property, which is not a taxpayer, is null and void as the content of the disposition is not legally realized (see, e.g., Supreme Court Decision 2000Da68924, Feb. 23, 2001). Furthermore, if a trust relationship is established between the parties by transferring the ownership of real estate to the trustee and the parties pursuant to the Trust Act, the trust property cannot be deemed as the truster’s property after it is reverted to the trustee. Thus, even if the truster of trust property is a taxpayer, seizure of trust property reverted to the trustee based on a tax claim against the truster against the truster is null and void as a seizure against the third party’s property (see, e.g., Supreme Court Decision 96Da1742

As seen earlier, the instant attached real estate is the property that was entrusted to the Plaintiff by the West and two other parties, and this is the Plaintiff’s property. Therefore, the instant disposition taken by the Defendant against the instant attached real estate, which is the Plaintiff’s property, based on the tax claim against the Western, is null and void since it is a seizure disposition for the third party’s property

2) In addition, since compulsory execution against the trust property is prohibited under the main sentence of Article 21(1) of the Trust Act, the instant disposition against the instant seized real estate, which is the trust property, is null and void.

On the other hand, the defendant asserts that the disposition of this case is legitimate because the transfer income tax and comprehensive real estate holding tax in the taxation claims against Western constitutes "the right that occurred in the course of performing the trust business" under the proviso of Article 21 (1) of the Trust Act.

On the other hand, "the right that has arisen in the course of performing the trust affairs" under the proviso of Article 21 (1) of the Trust Act includes not only the right that has arisen from the management and disposal of the trust property (such as the trustee's expense and claim for damages under Article 42 of the Trust Act, and the right that is directly related to the trust property such as the right to claim remuneration under Article 43 of the Trust Act) but also the tax claim on the trust property, which is the right that is directly related to the trust property, in the trust property itself. However, as seen earlier, when a trust relationship is established under the Trust Act, the trust property shall belong to the trustee, and it shall not be subject to seizure of the trust property in the trustee's name due to a tax claim against the truster. Therefore, the tax claim on the trust property of Seocho-A, the truster, shall be deemed to mean only the tax claim imposed on the trustee. Therefore, this case's tax claim against the defendant does not constitute "the right that occurs in the course of performing the trust affairs" under the proviso of Article 21

3) Therefore, the instant disposition is a seizure against a third party’s property that is not a delinquent taxpayer without legitimate grounds, and its defect is significant and apparent and void.

4. Conclusion

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