Whether an amount equivalent to the value-added tax on the real estate can be excluded from the object of distribution in allocating the proceeds of public sale of real estate;

In allocating the proceeds from the public sale of real estate on which the right to collateral security has been established, the head of a tax office shall arbitrarily deduct the amount of the value-added tax from the owner and deliver it to the owner and receive the value-added tax in the form of voluntary payment of the value-added tax, notwithstanding the fact that the value-added tax is not imposed on the real estate concerned under Article 3

Articles 2 and 15 of the Value-Added Tax Act, Article 80 of the National Tax Collection Act, Article 35 of the Framework Act on National Taxes

Jeju Bank, Inc.

Korea

Seoul Central District Court (86 Gohap1336) in the first instance trial

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

The defendant shall pay to the plaintiff the amount of 65,152,340 won with 5% per annum from December 27, 1985 to the delivery date of a copy of the complaint of this case, and 25% per annum from the next day to the full payment date.

The costs of lawsuit are assessed against the defendant.

The part against the defendant in the original judgment shall be revoked.

All of the plaintiff's claims are dismissed.

The court costs are assessed against all the plaintiff.

1. Judgment on the main defense of this case

The defendant asserts that the plaintiff's claim for restitution of unjust enrichment of this case is unlawful since it occurred as a result of public sale disposition and distribution of proceeds from sale under the National Tax Collection Act by the head of the tax office, which is an administrative disposition, so its validity cannot be denied unless it is revoked by administrative litigation procedure.

On the other hand, if any administrative disposition clearly violates the law, the person who suffered losses due to the invalid administrative disposition can claim the return of unjust enrichment directly against the person who received the profits from the administrative disposition. As seen earlier, the head of the Dong-gu Daejeon District Tax Office, in fact, distributes the proceeds of the public sale of the real estate in this case in violation of the order of priority under Article 35 of the Framework Act on National Taxes, so the above distribution is null and void (see Article 81 (5) of the National Tax Collection Act). Thus, the defendant's defense is groundless.

2. Judgment on the merits

Since the plaintiff bank's current or future loan claims against the non-party 2 were owned by the non-party 1, the non-party 2, the non-party 3, the non-party 4 and the non-party 2, the non-party 4 and the non-party 2, the non-party 2, the non-party 4 and the non-party 2, the non-party 2, the non-party 1 and the non-party 2, the non-party 2, the non-party 4 and the non-party 2, the non-party 2, the non-party 4 and the non-party 2, the non-party 7, the non-party 2, the non-party 4 and the non-party 2, the non-party 2, the non-party 4 and the non-party 2, the non-party 4 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 2, the non-party 2 and the non-party 2, the non-party 7.

Accordingly, the plaintiff asserts that the above Hong Master is not a real estate sales businessman who leases the real estate of this case, which is the department store and office office, to another real estate sales businessman, and thus, the value-added tax is not imposed on the disposition of this case. Although the value-added tax is imposed on the disposition of this case, the sales price is subject to distribution in whole, and the value-added tax should be distributed according to the order of priority stipulated in the Framework Act on National Taxes. The head of the Dong Daejeon District Tax Office excluded the sales price from the value-added tax, 60,772,510 won, which is equivalent to the value-added tax, from the sales price, on the ground that the above non-party, who is the successful bidder, is not subject to distribution of the value-added tax on the real estate that is delivered to the above Hong Master Master Master City, and voluntarily pays it as

The plaintiff's assertion that the transfer of real estate in this case is not subject to value-added tax because the above Hong Master is a tax imposed on goods or services independently supplied by an entrepreneur for business, such as the plaintiff's master craftsman, and it is clear that the above Hong Master is the entrepreneur unless the real estate rental business operator like the plaintiff's master craftsman, and that the transfer of real estate in this case constitutes the supply of goods. Therefore, the above successful bid price includes the amount equivalent to value-added tax collected by an entrepreneur pursuant to Article 15 of the Value-Added Tax Act.

However, a taxpayer of value-added tax is merely a person who is a supplier of goods and is supplied with the goods. (See Article 2 and Article 15 of the Value-Added Tax Act) Since it is merely a person who is a fiscally related person (see Article 15 of the Value-Added Tax Act), the amount of money collected by a business owner cannot be value-added tax immediately (the business owner shall own the amount equivalent to value-added tax collected from the person who is supplied with the goods, and pay it after the tax liability becomes final and conclusive). Therefore, the entire successful bid price shall be allocated in the order of priority under Article 35 of the Framework Act on National Taxes (see Article 80 of the National Tax Collection Act). However, in violation of Article 35 of the Framework Act on National Taxes and other Acts and subordinate statutes, the head of the Dong Daejeon District Tax Office shall immediately regard the amount equivalent to value-added tax as value-added tax and formally excludes it from the above disposal of the goods to the defendant. However, the defendant is obligated to pay the above amount equivalent to value-added tax under Article 35 of the Framework Act.

In addition, the Plaintiff asserts that, even if one of the objects jointly mortgaged collects a certain amount, the maximum debt amount of the right to collateral security shall not be reduced to that amount, so the said Daejeon District Tax Office excluded the Plaintiff from the said amount of KRW 271,335,226, which the Plaintiff received from the said real estate in allocating the first priority collateral security, and that the Defendant obtained unjust enrichment from the amount of national taxes of KRW 4,379,830, which is lower than the said first priority collateral security, as the Defendant obtained a share of KRW 7,379,830, which is lower than the said first priority collateral security.

In the case of a joint mortgage, several real estates are offered to the joint purpose of securing the same claim, and if part of the claim is repaid from any one of the real estates, only the remaining claim shall be secured. Therefore, the above distribution by the head of the Daejeon District Tax Office is right and wrong, and the plaintiff's above assertion is groundless.

Therefore, the defendant is obligated to pay interest at the rate of 5% per annum from December 27, 1985, the day following the date of the above benefit to the plaintiff, which is the 60,772,510 won which is unjust enrichment, to the plaintiff (the plaintiff is not accepted since it is reasonable for the defendant to resist the existence and scope of the debt). The plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is reasonable, and the judgment below is just, and the defendant's appeal is dismissed as it is without merit, and the costs of appeal are assessed against the defendant who has lost the defendant.

Judges Lee Jae-joon (Presiding Judge)