The statutory date of additional tax claims is later distributed to the lower court than the date of registration of creation of a mortgage near the date of registration;

Tax claim holders who completed the registration of seizure prior to the registration of commencement of auction may receive dividends without requesting the issuance thereof. The principal tax of tax claim prior to the statutory due date than the registration date of establishment of mortgage prior to the registration date of establishment of mortgage is entitled to preferential dividends by the State, but in the case of additional dues, the mortgagee has preferential dividends if the statutory due date is later than

Article 35 of the Framework Act on National Taxes

2015 grouped 106026 grouped against the distribution

○○ Raba Co., Ltd.

Korea

March 16, 2016

March 30, 2016

1. Of the distribution schedule prepared by the above court on May 20, 2015, the amount of 353,842,51 won against the plaintiff, 357,654,21 won, and the amount of 27,739,90 won, 23,928,30 won, out of the distribution schedule prepared by the above court, shall be corrected to 353,842,51 won, and the amount of dividends against the defendant shall be corrected to 23,928,30 won, respectively.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Cheong-gu Office

On May 20, 2015, with respect to the auction of real estate under Paragraph (1) of the Disposition, the amount of dividends to the defendant among the dividend table prepared by the above court on May 20, 2015 shall be deleted, and KRW 27,739,90 shall be corrected to KRW 353,842,551, which shall be corrected to KRW 381,582,541.

1. Basic facts

[Ground of recognition] Facts without dispute, Gap 1, 2, 4, 5, Eul 1-4, the purport of the whole pleadings

A. With respect to ○○○○○○○○-dong 166, 06, ○○○ apartment ○○○○○○○○○○○○ (hereinafter “the instant real property”), AAB bank (a joint stock company BB bank prior to the amendment) established the right to collateral security with the maximum debt amount of KRW 240,00,000 on September 4, 2013, and the right to collateral security with the maximum debt amount of KRW 168,00,000 on September 5, 2013, respectively. On December 30, 2014, the Plaintiff completed the additional registration prior to the acquisition of the said right to collateral security from AAB bank.

B. As to the instant real estate, on March 17, 2014, the registration of the Defendant’s seizure was completed due to the Defendant’s default on national taxes by Gangwon○. The amount of delinquent taxes stated in the Defendant’s attachment report at the time are as follows.

C. On July 25, 2014, upon the Plaintiff’s application for auction, the procedures for the voluntary auction as stated in the Disposition No. 1 were initiated regarding the instant real estate upon the Plaintiff’s application for auction. The Defendant requested the delivery on January 22, 2015 after the final period for demand for distribution ( October 6, 2014). The amount of national taxes in arrears stated in the Defendant’s written request for delivery is as follows.

D. On the date of distribution on May 20, 2015, KRW 27,739,990 (the statutory due date is the amount obtained by adding the principal and additional charges of the said three taxes prior to the date of establishment of the collateral security), and the remaining KRW 353,842,551 was distributed to the Plaintiff in the second order, and the Plaintiff filed the instant lawsuit after raising an objection against the Defendant’s total amount of dividends.

2. The parties' assertion

A. The plaintiff's assertion

1) The defendant cannot receive dividends since he requested the delivery after the completion period to demand a distribution.

2) The Defendant’s tax paid to the Defendant is not the pertinent tax, but the payment deadline is later higher than September 5, 2013, which is the date on which the Plaintiff’s right to collateral security was established.

3) The statutory deadline for additional dues and the date of payment, which are the statutory deadline for additional dues, are subordinate to the Plaintiff since September 5, 2013, which is the date of establishing the Plaintiff’s right to collateral security.

B. Defendant’s assertion

1) The defendant is entitled to receive dividends even without a request for delivery, since the entry registration of seizure period was made prior to the decision to commence the auction.

2) Since the statutory due date for a taxation claim is earlier than the date of the Plaintiff’s creation of a collateral security, a prior distribution can be made than the Plaintiff.

3) The additional dues should be judged by the basis of the principal tax, which is superior to the Plaintiff.

4) The value-added tax amounting to KRW 789,960, which was stated at the time of seizure, was omitted by mistake at the time of request for delivery, but should be included in the dividend amount, which takes precedence

3. Determination

A. As to the assertion of defects within the completion period to demand a distribution

In a case where a registration of seizure by a disposition on default has been completed prior to the registration of the commencement of auction on real estate prior to the registration of the entry into the court for commencement of auction, even if the State does not make a request for delivery under Article 56 of the National Tax Collection Act, as a matter of course, the said registration takes the same effect as the demand for distribution under the Civil Procedure Act (see, e.g., Supreme Court Decision 2001Da11055, Jan. 25, 2002). Even if the Defendant did not make a request for delivery within the completion period for

(b) Priority of principal tax;

The priority order of taxation claims and mortgage shall be based on the legal date of taxation and the date of registration of establishment of mortgage (Article 35 (1) 3 of the Framework Act on National Taxes).

In the case of principal tax, the wage and salary income tax of 488,840 won (the statutory due date February 10, 2013), value-added tax of 2,372,580 won (the statutory due date July 25, 2013), value-added tax of 20,276,960 won (the statutory due date July 25, 2013) included in the dividend by the auction court is higher than that of the Plaintiff’s first establishment date of right to collateral security (the statutory due date, July 25, 2013), and thus, the Defendant has priority. The Plaintiff’s assertion that the payment deadline should be based on the payment deadline is rejected.

(c) Priority of additional dues;

The order of priority of additional dues and mortgage shall be based on the statutory due date of the additional dues itself, and the statutory due date of the additional dues is when the time limit for payment notified in the notice of payment expires (see, e.g., Supreme Court Decisions 97Da12037, Sept. 8, 1998; 2001Da74018, Feb. 8, 2002). Supreme Court Decision 96Da40264, Apr. 11, 1997 cited by the Plaintiff, Supreme Court Decision 96Da40264, Apr. 11, 1997, is a precedent concerning Article 31(1) and (2) of the former Local Tax Act (amended by Act No. 4794, Dec. 22, 1994). Since both the statutory due date of each tax stated in the written request for the issuance are after September 5, 2013, the Plaintiff’s assertion that the additional dues are established is more reasonable.

D. Defendant’s assertion that value-added tax dividends are paid

The Defendant asserts that the amount of value-added tax of KRW 789,960, which was omitted at the time of the request for delivery (the statutory date, July 25, 2013) should be included in the amount of distribution, as there are priority rights. According to the above acknowledged facts, the Defendant, at the time of seizure, included the value-added tax of KRW 789,960 in the attachment report at the time of seizure, and omitted the claim in error at the time of the subsequent request for delivery, but the above claim did not change the priority right to the Plaintiff. Even if this is included, the above amount shall be included in the amount of the delinquent amount of the attachment report within the scope of KRW 30,315,950 (the amount of delinquent amount of the attachment report within the scope of KRW 30,315,950). The above amount shall be included in the amount of the Defendant’s distribution ( even if the registration of the attachment by the disposition on default prior to the registration of the commencement of the auction on real estate was completed, even if the State did not submit the distribution schedule within 2000.

E. Sub-committee

Therefore, since the amount that the Defendant is liable to receive is 23,928,330 won (=48,830 +2,372,580 +20 +20,276,960 +789,960), the Defendant’s dividend amount should be reduced to the above amount. 3,81,660 won so reduced should be included in the Plaintiff’s dividend amount, and the amount of the Plaintiff’s dividend should be revised to 357,654,211 won (=353,842,551 + 353,842,513,81,660).

4. Conclusion

The plaintiff's claim is partially accepted.