A person who has acquired a real estate registered for attachment and completed the registration of ownership transfer shall not be entitled to seek the invalidation or invalidity of the attachment disposition.

Where a tax authority seizes real estate owned by a taxpayer, a person who has acquired the real estate registered for attachment and completed the registration of ownership transfer after transfer shall not have a direct and specific interest in the disposition of attachment, and thus is not eligible to seek the invalidation or invalidity of the disposition of attachment, and is not eligible to seek the revocation of such disposition.

Article 53 of the National Tax Collection Act: Conditions to cancel attachment

2018Confirmation of Non-existence of Obligation 509678

○ ○

Korea

oly 14, 2019

6.05

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

With respect to each real estate listed in the separate sheet against the defendant's plaintiff, each registration of seizure issued by the defendant as No. 19087 on February 15, 2013 and No. 33598 on March 17, 2016 is confirmed to have no effect in excess of 450,424,150 won.

1. Basic facts

(a) The △△△△△△ owned each real estate listed in the separate sheet (hereinafter “instant real estate”). However, on February 15, 2013 due to the delinquency in the transfer income tax of the △△△△△△△, the seizure registration of the ○○ Tax Office was completed on the instant real estate on February 15, 2013 (the seizure was revoked on July 1, 2015 with respect to the real estate listed in the separate sheet No. 4 among the instant real estate), and on March 17, 2016, the seizure registration of the ○○ Tax Office was completed on the real estate listed in the separate sheet No. 4 of the instant real estate (hereinafter “instant seizure”). However, the △△△△△△△△△△△ issued a certificate of delinquency issued on May 24, 2017 by the △△△△△△△△△ on the basis of the fact that the relevant real estate was delinquent.

C. On May 24, 2017, the Plaintiff confirmed the above fact of delinquency and entered into a sales contract with the △△△△ on the instant real estate, and completed the registration of ownership transfer on the same day.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 3 (including branch numbers for those with a satisfy number), the purport of the whole pleadings

2. Summary of the plaintiff's assertion

On May 24, 2017, the Plaintiff confirmed the fact that ○○○ Tax Office issued a certificate of default on the issuance of △△△△ on May 24, 2017, and purchased the instant real estate from △△△△△△△. On September 2017, ○○○ Tax Office, the public official in charge of ○○ Tax Office notified the Plaintiff that the instant seizure registration could not be cancelled if only KRW 450,424,150 on the certificate of default on the payment of KRW 450,424,150 is paid. On November 2, 2017, the Plaintiff prepared and submitted to ○○ Tax Office a national tax arrears plan to pay KRW 460,000,000 out of the delinquent tax amount of △△△△△△△△△ in installments to the effect that the Plaintiff would not pay the delinquent tax amount of KRW 1,018,718,010.

The Plaintiff purchased the instant real estate from the △△△△△ in trust with the content of the certificate of delinquency, which is KRW 450,424,150, and trusted the statement of the person in charge of the △△△△△△△ to cancel the registration of the instant seizure when only the said KRW 450,424,150 was paid. However, the Defendant may not cancel the registration of the instant seizure when the Plaintiff did not pay the entire amount of KRW 1,018,718,010, which was in arrears of the △△△△△△△△△△△△△△△△, thereby asserting any inconsistency with the preceding act.

However, Article 15 of the Framework Act on National Taxes provides that "when a taxpayer performs his/her duties, he/she shall do so in good faith. The same shall apply to the performance of his/her duties." Article 18 (3) of the same Act provides that "after the interpretation of tax law or the practice of national tax administration has been generally accepted by taxpayers, any act or calculation according to such interpretation or practice shall be deemed legitimate, and no tax shall be imposed retroactively by new interpretation or practice."

Therefore, even if the above 450,424,150 won is paid in contradiction with the above preceding acts over several times, the following acts of following the 000 tax office did not violate the principle of prohibition and good faith and the principle of good faith, and the plaintiff who trusted the preceding acts of the 000 tax office shall have a benefit to seek confirmation that the registration of seizure in this case does not exceed the above 450,424,150 won.

3. Judgment on the Defendant’s main defense

A. Summary of this defense

1) Although the tax authority seized a taxpayer’s property as part of a disposition on default, where a ground for cancellation of attachment under each subparagraph of Article 53(1) of the National Tax Collection Act occurs thereafter, a taxpayer or a person who has legal interest in the cancellation of attachment may file an application with the tax authority for cancellation of attachment. If the tax authority refuses to file an application for cancellation of attachment, an appeal may be filed, such as a revocation suit against the tax authority’s rejection disposition, subject to the prior trial procedure, as prescribed by the Framework Act on National Taxes, and may not be filed for a civil lawsuit. Therefore, the Plaintiff’s lawsuit of this case should have been filed as an appeal litigation. Even if the Plaintiff’s claim of this case was decided by a request for confirmation of existence of tax liability,

2) However, even if the Plaintiff files an administrative suit against the tax authority, the disposition imposing capital gains tax related to the instant real estate and the other party to the instant seizure disposition are only △△△△, and the Plaintiff is not a party to the instant seizure disposition, and there is no standing to seek revocation or nullification of the instant seizure disposition against the tax authority.

3) Therefore, in principle, the instant lawsuit shall be transferred to the District Court, which is the competent court (Article 7 of the Administrative Litigation Act). However, even if the instant lawsuit was filed as an administrative litigation, the Plaintiff is not entitled to seek the revocation of the instant attachment disposition or the invalidity thereof, and thus, the instant lawsuit is unlawful.

B. Relevant legal principles

1) Article 7 of the Administrative Litigation Act provides that the transfer of an administrative litigation to a competent court shall be made by applying Article 34(1) of the Civil Procedure Act in a case where the administrative litigation has been filed in a court where there is no intention or gross negligence of the plaintiff, and it is desirable in terms of the relief of rights or the economy of litigation to transfer it to the competent court rather than to dismiss a lawsuit for violation of jurisdiction on account of its illegality. Thus, in a case where the plaintiff files a lawsuit for a civil litigation without any intention or gross negligence, if the plaintiff does not have jurisdiction over the administrative litigation, the court of lawsuit must transfer the lawsuit as an administrative litigation where it is obvious that the lawsuit in question has already been filed for the prior trial procedure and the filing period as an administrative litigation, or where there is no disposition, etc. which is the object of the administrative litigation, unless it is an unlawful case (see, e.g., Supreme Court Decision 95Da28960, May 30, 197).

2) Meanwhile, in cases where the tax authority seizes real estate owned by the taxpayer for the purpose of tax collection, a person who later completed the registration of ownership transfer after completing the registration of attachment shall have a de facto and indirect interest in the above attachment disposition or the public auction disposition under the National Tax Collection Act, which is based on it, and does not have any legal and direct interest, and thus there is no party to seek the invalidation of the attachment disposition or the public auction disposition, and there is no party to seek the revocation of the attachment disposition (see, e.g., Supreme Court Decisions 91Nu6023, Mar. 31, 1992; 96Nu3241, Feb. 14, 1997).

C. Determination

1) In order to dispute the validity of the instant attachment disposition based on the disposition imposing capital gains tax on △△△△ rendered by the head of the health department and the head of the ○○ Tax Office on the instant case in light of the relevant legal principles, in order to challenge the validity of the instant attachment disposition, the head of the ○○ Tax Office, who is the tax office, shall file an application for revocation of the attachment disposition, and in the event that the said revocation application is rejected,

2) However, the Plaintiff, who purchased the instant real estate after the completion of the registration of the instant attachment, has a de facto and indirect interest in the instant attachment disposition, and does not have a direct and specific interest in law. Therefore, there is no standing to seek the revocation of the instant attachment disposition or to seek the nullification thereof.

3) Therefore, the instant lawsuit is dismissed as unlawful even if it is transferred to the competent court, the competent court, and thus, the instant lawsuit is unlawful.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.