Whether seizure or collection is possible in subrogation of the right to claim damages due to non-performance of the agreement.

Even if the instant construction contract provides that value-added tax shall be paid first from the sales price managed by the Defendant, it cannot be deemed that the Defendant is liable for damages equivalent to value-added tax even if the Defendant either executed the funds at the request of BB, or did not request BB to pay the amount equivalent to value-added tax, or did not remain in the account of this case.

Article 41 of the National Tax Collection Act

2013 Gohap536392

Korea

AAAA

May 24, 2014

July 4, 2014

1. The plaintiff's claim is dismissed.

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

The defendant shall pay 20% interest per annum to the plaintiff at the rate of 20% from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

(a) A new apartment construction project in BB;

(1) On December 30, 2003, BB entered into the instant construction contract with the Defendant as the contractor and agreed as follows (hereinafter in this case, the company’s name is omitted and the said apartment is called the instant apartment unit and the instant apartment unit is the sales business).

Article 3(1) BB and CCC, a joint contractor, are obligated to implement the project by bearing various project costs, such as taxes, public charges, and various charges.

Article 10 (1) In order to protect the defendant's construction expenses, loans, and the right to sell lots, the money for sale shall be opened in a commercial bank under the name of the defendant and managed and executed by the defendant in the order of execution of the funds prescribed in paragraph (4).

(2) Notwithstanding paragraph (1), the tax accounting of proceeds from sale in lots shall be conducted by BB and CCC in the name of BB and CCC, and BB and CCC shall not raise any objection against normal funds executed from proceeds from sale in lots.

(4) The order of use of proceeds from sale shall be as follows:

1) Project costs related to the project (such as taxes and public charges, design costs, supervision costs, various charges, etc.);

2) The Defendant’s direct loan and interest

(iii) interest in arrears of construction cost and principal of construction cost

(iv) loan interest and loan;

(v) the prior investment funds of BB and CCC;

6) However, the above order of use may be modified to the agreement of BB, CCC, and the defendant.

The BBB and the CCC, the implementation company, received a loan of the amount of KRW 55 billion, and the Defendant, as a joint and several surety, jointly and severally guaranteed the debt of the instant apartment construction project, needed to appropriately manage the sales price due to the need for loan repayment, construction cost security, etc. Accordingly, the Defendant opened a sales revenue management account in the name of the Defendant (hereinafter referred to as the “instant account”) pursuant to Article 10 of the instant construction contract and received and managed the sales price from the buyers from the buyers from February 2, 2004 to January 2, 2007, while managing the sales price from the buyers and CCC’s request for specific funding from BB and CCC, from February 2004 to January 207, 207, managed the funds by withdrawing funds such as related taxes, construction price, loans, etc. from the instant account.

Fidelity BB paid value-added tax according to the sale of apartment units by sending a public notice requesting the Defendant to pay the funds more than ten times from April 26, 2004 to July 25, 2006, while conducting the instant sales business. The public notice indicates "sales tax amount", "purchase tax amount", and "paid tax amount", and the date of payment and the date of deposit account (○○○○○○○○○○○○○○ AccountBB) and requests the Defendant to pay the funds.

(b) Default of value-added taxes;

(1) Around May 2, 2006, the Defendant received the construction cost of KRW 00 won in total, including the payment of the remainder on May 2, 2006, after the completion of construction (on March 2, 2006).

BB and CCC on March 15, 2007, after the completion of the sales business of this case (round January 2007), around March 15, 2007, the sales business of this case (hereinafter “CCC”) sent to the Defendant a statement of business settlement “to deposit the execution, and to transfer the relevant funds to the account specified in the official text, such as the litigation costs in the related lawsuit, since the seizure of DD ○○○○ out of the balance of the instant account is concurrent in the situation of seizure.” The remaining balance shall be paid to CCC account, and the remaining balance shall be closed.” Accordingly, the Defendant closed the instant account after depositing part of the money into the relevant law firm account, such as the relevant litigation expenses related to the Si event, etc.

Fidelity BB did not pay the value-added tax for the first term portion of the instant sales business on September 6, 2006, and around September 6, 2006, from Seocho tax office imposed ○○○○○○○○ ( September 30, 2006) on BB. As of the filing date of the instant lawsuit, the amount of delinquent tax as of the filing date of the instant lawsuit is the sum of the principal tax and the additional ○○○○○○○○○.

(c) Seizure of claims;

In accordance with the National Tax Collection Act on May 27, 2013, the head of the ○○ Tax Office attached “the amount until the amount in arrears is the amount in national taxes, among the claims for return of unjust enrichment or the claims for damages arising from failure to pay the value-added tax imposed by BB to the Defendant according to the instant construction contract,” and the notification of seizure to the Defendant around May 30, 2013 and the notification of seizure was delivered to the Defendant.

[Reasons for Recognition] Gap evidence Nos. 1-15, 27, Eul evidence Nos. 1-12 (including branch numbers)

Each entry, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. Summary of the plaintiff's assertion

(1) At the time of the instant construction contract, the Defendant agreed to pay the value-added tax by priority to the sales price at the time of the instant construction contract, or to pay the sales price by priority to the BB the amount equivalent to the value-added tax, and executed the sales price for another purpose without paying or providing the value-added tax in violation of the agreement, and thus,

Therefore, the defendant is obligated to pay damages to the plaintiff, who is the seizure right holder, up to the delinquent amount of BB.

See The defendant is obligated to pay the delinquent value-added tax on sales because he acquired the right to implement the apartment of this case from BB, or he actually received most of the benefits from sales revenue as a joint business proprietor.

B. Determination

(1) As seen earlier, Article 10 of the instant Construction Contract provides that value-added tax shall be paid first of all from the sales price managed by the Defendant. This purport is that, upon request of BB, etc., the amount of value-added tax shall be paid directly or withdrawn to BB to the extent that the balance remains in the instant account. Thus, even if the Defendant is liable for damages against Article 10 of the instant Construction Contract, even if the Defendant violated Article 10 of the instant Construction Contract, it is limited to the case where the Defendant refused the request for withdrawal of value-added tax under the condition that the balance remains in the instant account, and it cannot be deemed that the Defendant is liable for damage compensation or liability for payment equivalent to value-added tax even if the Defendant either paid the funds at the request of BB or the BB did not request a payment equivalent to value-added tax, or did not remain in

Sheb, according to the aforementioned evidence or facts of recognition, BB, etc. sent a business settlement statement to the Defendant on March 15, 2007, which was after the completion of the sales business without a request for payment, even though the tax of this case was imposed on September 6, 2006 when B, etc. did not pay the value-added tax for the last day of January 2006. The Defendant deposited part of the remaining amount of the account of this case in accordance with the contents of the business settlement statement, and completed settlement by means of remitting it to the law firm, and completed settlement and closed the account of this case. Thus, the Plaintiff’s assertion on this part is without merit.

Article 10 of the Construction Contract of this case is an agreement between the defendant and BB, etc. on the order or method of the execution of the sale price, and thus, it cannot be deemed that the defendant took over the sale price of this case from the plaintiff or the tax authority. According to the evidence No. 16-26, although it is recognized that BB delivered related documents such as a waiver of business rights related to the sale price of this case to the defendant around 2004, around the time when the sale price of this case begins, it is nothing more than the agreement that BB, etc. continued the sale price of this case until the completion of the project of this case and requested a settlement prohibition order after the completion of the project of this case, it cannot be deemed that the defendant was a joint proprietor of the sale business of this case or acquired the sale price of this case from BB, etc.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.