If a trustee in a business, such as real estate development, does not pay the value-added tax incurred in selling real estate to the truster and pays it to the contractor, it is legitimate.

Value-added tax generated from sale is owned by a trustee and collected value-added tax is owned by a seller, so it does not constitute embezzlement. Even if it is based on the consignment agreement, the payment of value-added tax to the contractor is not contrary to the agreement.

2013 Gohap32273 Claims for subrogation by subrogation, etc.

Korea

○○ Co., Ltd.

March 14, 2014

March 28, 2014

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 00 won with 5% interest per annum from July 26, 2010 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On March 31, 2005, the △△ Construction Co., Ltd. (hereinafter referred to as the "△△ Construction") entrusted the Defendant with the land (hereinafter referred to as the "land in this case") of the KRW oo-dongo-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong, and entered into a land trust agreement with the Defendant on November 2, 2006, with the total floor area of op, op, and o-household o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-dong o-si o-dong o-si o-dong o-dong o-si o-si o-si o-si o-si o-si.

B. In accordance with the land trust business agreement in this case, △△ Construction concluded a construction contract for the construction of the instant apartment on the same day with △△ Construction, and entered into a sale-type land trust contract with the Defendant (hereinafter “instant trust contract”).

C. After completing the registration of ownership transfer under the name of the Defendant based on the trust agreement of this case, the Defendant succeeded to the status of the contractor from △ Construction on November 3, 2005, and entered into a construction contract with △△ Construction to newly construct the instant apartment on June 2009 by making the contract amount of KRW 00 and the date of completion as the contract amount between △△ Construction and △ Construction on November 3, 2005.

D. around November 2, 2009, △△ Construction completed the construction of the instant apartment, and the Defendant completed the registration of preservation of ownership on the ground of trust as to the households not sold to the general public among the instant apartment in accordance with the instant trust agreement on December 11, 2009.

E. However, △△ Construction failed to receive the construction cost under the construction contract from △△ Construction or the Defendant until February 2010, which was three months after the completion of the apartment in this case. Pursuant to Article 29(1) of the Land Trust Business Agreement, among the apartment in this case, the apartment in this case, the apartment in this case sold to the housing unsold in lots and the household whose sales contract was cancelled in general (hereinafter referred to as "households, such as unsold in lots"), among the apartment in this case, in order to cover the construction cost by disposing of the apartment in this case, from among the apartments unsold in lots, and the apartments sold in general under the name of the Defendant, and requested the Defendant to cooperate with △△△ Construction on June 25, 2010, which was the time when the sale negotiation was concluded.

F. On June 29, 2010, the Defendant notified △ Construction of the fact that △△ Construction requested to sell to households, such as the unsold housing units, etc. on the same day, and entered into a sales contract to sell the household units, such as the unsold housing units, in an amount equivalent to 80% of the sales amount, as stipulated in Article 29(1) of the Land Trust Business Agreement (hereinafter “instant sales contract”). On June 30, 201, the Defendant completed the registration of ownership transfer in the name of △△△△ on the grounds of the instant sales contract with regard to the unsold housing units, etc.

G. After that, the Defendant received △△△ from △△△ to pay KRW 00,00, the aggregate of the acquisition value of the building and land as the sales price of the instant case, including KRW 00 + KRW 00 + KRW 00 + KRW 00) and value-added tax (=00 + KRW 000) and paid all the construction price to △△△△ Construction.

[Ground of recognition] Facts without dispute, Gap evidence 2, Gap evidence 3-1, Gap evidence 4, 5, Gap evidence 6-1 to 5, Gap evidence 7, Eul evidence 1, and the purport of the whole pleadings

2. The plaintiff's assertion

As of the time of filing the instant lawsuit, the Plaintiff is a creditor who holds a tax claim of KRW 00 (income tax of KRW 00, value-added tax of KRW 00) for △ Construction, and as of December 31, 2012, the assets are 00 as of December 31, 2012, while the liabilities exceed the liabilities of KRW 00.

The Defendant is a trustee entrusted with the instant land and apartment in accordance with the instant trust contract with △ Construction. After selling the instant housing unsold in lots, etc., the Defendant received the sales price (00 won) and the value-added tax (00 won; hereinafter referred to as the “value-added tax”) from △△△△, and issued a tax invoice in the name of △△ Construction and issued the instant value-added tax to the Plaintiff. As such, the Defendant, a trustee, is obligated to pay the instant value-added tax to the Plaintiff. Therefore, for the △ Construction, the Defendant, a trustee, is liable to pay the instant value-added tax to the Plaintiff, who keeps the instant value-added tax for the purpose and purpose of paying the value-added tax as value-added tax to the Plaintiff. Nevertheless, the Defendant embezzled the amount corresponding to the value-added tax in this case as the construction price, along with the sales price

Therefore, since △ Construction incurred damages due to the Defendant’s above embezzlement, △ Construction has a damage claim equivalent to the value-added tax of this case against the Defendant. Since △△ Construction did not exercise the above damage claim against the Defendant, the Plaintiff sought payment of the amount of damages equivalent to the value-added tax of this case in subrogation of the Defendant as a tax claimant for △ Construction as a tax claim for △ Construction.

3. Determination on the defense prior to the merits

A. The defendant's assertion

According to the records of inquiry (No. 1) as to whether the Plaintiff was delinquent (Evidence No. 1) submitted, against the Plaintiff of △ Construction

The amount of delinquent tax is only 00 won of earned income tax and value-added tax total of 00 won, and there is no evidence to acknowledge that the Plaintiff has a 00 won delinquent tax claim against △ Construction. Thus, the Plaintiff has no right to file a lawsuit for subrogation of the creditor with respect to the portion exceeding the above 00 won.

B. Determination

However, according to the above evidence, "amount to be paid" is stated as 00 won for wage and salary income tax of 00 won for wage and salary income tax of 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 00 won for 0 won for 00 won for 00 won for 0 won for 00 won for 0 won for 00 won for 0 won for 00 won for 00 won for 0 won for 00 won for 0 won for 1) for 31.

Therefore, this part of the defendant's assertion that the right to the creditor subrogation does not exist partially is without merit.

4. Judgment on the merits

A. Whether the Defendant’s act of paying the sales amount to △ Construction including the value-added tax in this case constitutes embezzlement

1) Under the Trust Act, the trust property is entirely and externally attributed to the trustee, and its ownership cannot be said to be reserved against the truster in the internal and external relationship with the truster (see, e.g., Supreme Court Decision 2010Da67593, Jul. 12, 2012).

In addition, the amount of value-added tax received by a trustee by disposing of trust property pursuant to a trust contract is part of trust property. Meanwhile, the amount of value-added tax received by an entrepreneur from the supply of goods is not temporarily kept in order to fulfill the obligation to pay value-added tax, but is reverted to the entrepreneur’s ownership in combination with the purchase price. Since the entrepreneur fulfills the obligation to pay value-added tax under his/her responsibility, regardless of whether or not to collect the output tax accrued during a certain period after the end of a certain taxable period and the output tax amount, the amount equivalent to value-added tax collected by the trustee from the purchaser pursuant to the disposal of trust property shall be deemed as part of the purchase price, and it shall not be deemed that the amount equivalent to the value-added tax collected by the trustee is accounts as a deposit account, separate from the value of the goods (see Supreme Court Decision 9Da5929

2) In light of the above legal principles, the ownership of the trust property in accordance with the trust contract in this case is owned by the Defendant, the trustee, and the amount equivalent to the value-added tax paid pursuant to the trust contract in this case is not an amount separate from the purchase price, but a part of the purchase price, and thus, the amount equivalent to the value-added tax in this case is owned by the Defendant, the trustee, and even if the Defendant paid the full amount of the purchase price, including the value-added tax in this case, to △△ Construction, the Defendant’s act does not constitute an embezzlement under the premise that the value-added tax in this case is the property owned by another person. Thus, there is no claim for damages against the Defendant in △ Construction, which caused the Defendant’s embezzlement

3) Meanwhile, only an entrepreneur under the Value-Added Tax Act is the taxpayer of value-added tax, and the entrepreneur is not obligated to pay the output tax as value-added tax on the sole basis that the entrepreneur, who is the taxpayer of the tax, collected the output tax from the taxpayer of the tax, and the entrepreneur bears the obligation to pay value-added tax regardless of whether the output tax was collected (see Supreme Court Decision 9Do1969, Nov. 26, 199). Thus, in light of the legal doctrine that the output tax collected once is reverted to the entrepreneur’s ownership (see Supreme Court Decision 99Do1969, Nov. 26, 199). In a case where the Defendant received the purchase price including the value-added tax amount from △

4) Therefore, the Plaintiff’s claim of this case constitutes a case where the subrogation claim does not exist.

B. Whether the Defendant violated the order of fund execution stipulated in the land trust business agreement of this case

1) The Plaintiff changed the instant land trust business agreement over three occasions through consultation with △△ Construction, Defendant, and △△△ Construction, and the changed land trust business agreement (Ⅱ), stating that “sales value-added tax is paid at the bottom of the project cost attached to the annexed land trust business agreement (Ⅱ), and the refund of value-added tax is to be immediately deposited into the trust property management account under Article 9.” In light of the fact that the modified land trust business agreement takes precedence over the instant land trust business agreement, the purport of paying value-added tax is to take precedence over the construction contract cost for △△△ Construction, and this is also applicable to the portion of Article 29(1) of the instant land trust business agreement. Thus, the Defendant’s payment of the instant value-added tax to △△ Construction is contrary to the modified land trust business agreement (Ⅱ), and the Defendant’s payment of value-added tax to △△△ Construction constitutes a breach of the instant land trust business agreement, and thus, the Defendant’s assertion that the instant land trust business agreement constitutes a series of violation of the instant land trust business agreement.

2) Comprehensively taking account of the purport of the Plaintiff’s △△ Construction Agreement’s △△ Party’s △△ Party’s △△ Party’s 1 and △△ Party’s 1’s △△ Party 2’s △△ Party 1’s △ Party 1’s △ Party 2’s △ Party 1’s △ Party 2’s △ Party 2’s △ Party 1’s △ Party 2’s △ Party 1’s △ Party 2’s △ Party 1’s △ Party 2’s △ Party 1’s △ Party 2’s △ Party 1’s △ Party 1’s △ Party 2’s △ Party 1’s △ Party 1’s △ Party 1’s △ Party 1’s △ Party 2’s △ Party’s △ Party 1’s △ Party 2’s △ Party 2’s △ Party 2’s △ Party.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.