(a) Whether real estate secured by provisional registration is a property transferred for security under Article 42 of the Framework Act on National Taxes;

B. Validity of a provisional registration of delinquent national tax imposed on a creditor by deeming real estate secured by provisional registration as security property for transfer as security (=reasons for cancellation)

A. In a case where a delinquent taxpayer has made a provisional registration for the security of obligation, the real estate is already provided as the object of security of obligation at the time of establishing the provisional registration, and it cannot be deemed as a security for transfer, which takes the form of ownership transfer, and the Plaintiff’s principal registration based on provisional registration is merely a stage of exercising the security right after the settlement prior to the filing of a lawsuit. It is nothing more than an asset provided as a security for transfer under

B. Since the real estate, the principal registration of which has been made on the basis of provisional registration for securing the delinquent’s obligation, is not a property transferred for security under Article 42 of the Framework Act on National Taxes, it is unlawful to impose a tax on the said creditor on the ground that the said creditor is a person liable for physical payment of delinquent national taxes. However, the defect of the said tax disposition cannot be objectively clear, and only

A. Article 42 of the Framework Act on National Taxes / Article 372 of the Civil Act. Article 42 of the Framework Act on National Taxes, Article 1 of the Administrative Litigation Act, Article 372 of the Civil Act

Attorney Hong-soo, Counsel for the plaintiff-appellant

Head of Sungbuk Tax Office

Seoul High Court Decision 81Gu581 delivered on January 26, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal by the Plaintiff’s attorney are examined.

Examining the reasoning of the judgment below on August 12, 1978, the Plaintiff agreed to lend interest of KRW 11,00,000 to the Nonparty at five percent per annum, and three months after the due date, and made a provisional registration on August 17, 1978 for preserving the right to claim ownership transfer under the Plaintiff’s name as of August 17, 1978. The Plaintiff and the Nonparty on September 11 of the same year repaid KRW 12,650,00 to the Nonparty on November 11 of the same year, the Plaintiff cancelled the above provisional registration. If the Nonparty did not repay the above amount by the above date, the Plaintiff performed the principal registration procedure based on the provisional registration as to the instant real estate for the purpose of collateral, the Plaintiff did not transfer and order the instant real estate to the Nonparty on August 16, 1979 for the purpose of collateral, and the Defendant did not impose the above provisional registration for KRW 12,650,000,000 on the Plaintiff’s gross income from August 16, 29, 1975.

The lower court determined that the instant taxation disposition by the Defendant, which was imposed on the Plaintiff by deeming the instant real estate transferred under the Plaintiff’s name as the transferred property under the Plaintiff’s name as the transferred property under Article 42(1) of the Framework Act on National Taxes, was lawful, and that the instant real estate should be deemed as the time of provisional registration, rather than the time of the principal registration, pursuant to the proviso of Article 42(1) of the Framework Act on National Taxes, the Defendant’s illegality, which is merely the mere fact that the Defendant’s illegality can only be revoked.

According to Article 42 (2) of the Framework Act on National Taxes, the property transferred for security refers to the property substantially becoming the object of securing a claim to the transferor at the time when the taxpayer transfers the property under a contract between the parties concerned. Accordingly, upon examining the terms and conditions of the contract between the Plaintiff and the Nonparty on the real estate in this case, the above Nonparty merely made a provisional registration of the Plaintiff’s name on the real estate in this case in order to secure a loan obligation to the Plaintiff at the time of a loan agreement for consumption, and thus, the real estate in this case already became the object of a claim security at the time of establishment of provisional registration. Thus, it can be deemed that the real estate in this case has already become the object of a claim security at the time of establishment of provisional registration. However, it cannot be deemed as a transfer of security in the form of a security taking the form of a transfer of ownership, and it cannot be deemed that the Plaintiff’s provisional registration completed a provisional registration pursuant to the above-mentioned telephone content is merely a step to satisfy the secured claim by exercising the security right on the ground that the obligation of the above Nonparty, the secured obligation.

Therefore, the court below erred by misapprehending the legal principles on the property transferred for security under the Framework Act on National Taxes, which concluded that the Defendant’s tax assessment imposed on the Plaintiff was unlawful, as a person who is liable to pay physical taxes on the above Nonparty’s delinquent national taxes by deeming the real estate as the property transferred for security, and who is liable to pay taxes on the Plaintiff. However, the court below’s determination that the above tax assessment defect cannot be deemed to be objectively obvious and obvious, and thus, the court below dismissed the Plaintiff’s claim of this case seeking confirmation of invalidity cannot be deemed to have been just and reasonable. Thus,

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Jong-young (Presiding Justice)