[1] Legislative intent of Article 35 (1) 3 of the Framework Act on National Taxes and the scope of "national tax imposed on the property" under the proviso of the same Article (the corresponding tax)

[2] Whether gift tax imposed pursuant to Article 34-2 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) constitutes a national tax imposed on the selling property under Article 35(1)3 of the Framework Act on National Taxes (amended by Act No. 5193 of Dec. 30, 199) and takes precedence over mortgage claims (negative)

[1] Article 35 (1) 3 of the Framework Act on National Taxes aims to properly harmonize the judicial request to guarantee the safety of transaction and the public interest request to secure the realization of tax claims with respect to the secured real right accompanying the public notice. Thus, even if the so-called taxation priority is given to the claims secured by the secured right, this does not infringe on the essential contents of the secured right, and therefore, the "national tax imposed on the property" under the same Act means only the national tax imposed by recognizing the ability to pay for the property as it can be reasonably predicted by the purchaser of the secured right to impose on the property in the future. Thus, even if the above Enforcement Decree of the Framework Act on National Taxes prescribes the gift tax as its tax without the basis of delegation by the mother law, it shall not be deemed that all gift tax is the pertinent tax uniformly, but it shall be interpreted limited to the corresponding scope through the interpretation and application of the individual laws and regulations that are the basis

[2] The gift tax imposed on the constructive gift pursuant to the provisions of Article 34-2 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) shall be deemed to have been donated benefits equivalent to the difference between the price and the market price in the case where the type, intangible, intangible, or de facto or de facto rights, etc. are transferred for the price lower than the market price from the person having a special relationship with the content of the provision. Unlike the ordinary provisions imposing on the gift of the property itself, it shall be deemed that the taxable object is a factor imposed on the profit equivalent to the difference between the market price and the price due to the sale at a low price and the price due to the sale at a lower price. Accordingly, the nature of the pertinent tax is relatively different from the nature of the pertinent tax, recognizing and imposing the tax base force on the possession of the pertinent property as stipulated in Article 35(1)3 of the Framework Act on National Taxes. It is not easy to predict whether the donor and the donee have a special relationship or property at a lower price than the market price.

[1] [1] Article 35 (1) 3 of the Framework Act on National Taxes; Article 18 (1) of the Enforcement Decree of the Framework Act on National Taxes / [2] Article 35 (1) 3 of the Framework Act on National Taxes; Article 18 (1) of the Enforcement Decree of the Framework Act on National Taxes; Article 34-2 (1) of the former Inheritance Tax Act (wholly amended by Act No. 5193, Dec. 30, 1996); Article 34-2 (1) of the former Inheritance Tax

[1] Supreme Court en banc Decision 96Da23184 delivered on March 18, 1999 (Gong199Sang, 715), Supreme Court Decision 2000Da47972 delivered on January 30, 2001 (Gong2001Sang, 535) / [2] Supreme Court Decision 95Da47831 delivered on March 12, 1996 (Gong1996Sang, 1250), Supreme Court Decision 99Da6135 delivered on July 12, 199 (Gong199Ha, 2491) (Gong199Ha, 1871)

Korea

Busan Mutual Savings and Finance Company (Attorney Sung Jae-young, Counsel for defendant-appellee)

Busan District Court Decision 99Na12157 delivered on February 9, 2000

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The amount of dividends against the plaintiff in the distribution schedule prepared by the above court on June 16, 1999 with respect to the real estate auction case of Busan District Court No. 98 49103 shall be changed to KRW 127,417,620 from KRW 0,00, and KRW 1,532,798,379 from KRW 1,532,79, and the amount of dividends against the defendant shall be changed to KRW 1,405,380,759, respectively.

1. Facts of recognition;

The following facts are not disputed between the parties, or they can be acknowledged in full view of the whole purport of the pleadings in the descriptions of Gap evidence 1-1 through 3, Gap evidence 2-4, Eul evidence 6, Eul evidence 1-1, 2, Eul evidence 2-1 through 9, and there is no counter-proof.

A. On January 29, 1993, Busan Metropolitan City 465 20 m20 m20 m2, 406.6 m2 (hereinafter “the instant land”) originally owned by Non-party Kim Young-dong 465 m20 m2, 406.6 m20 m2, 30 m2, and 1/3 m25 m25 m25 m2, 1995 m25 m25 m25 m2, 1993. The instant land was divided into the instant land on January 29, 1993.

B. At the time of the above transfer, one third of the shares in the land of this case is KRW 325,280,00,000. The above Kim Young-dong reported that the above shares were transferred to the above Kim Young-man at the same time of transfer. In this case, the above Kim Young-dong reported that the above shares were transferred to the above Kim Young-man at the same time of transfer, which is a kind of friendly Kim Young-young, the above Kim Young-young's value of the above shares was transferred to KRW 90,00,00,000, which is a price significantly lower than the above officially announced value of the land of this case (amended by Act No. 5193 of Dec. 30, 1996), the old Inheritance Tax Act (amended by Act No. 5193 of Dec. 1, 30, 1998; Presidential Decree No. 23005,90,900,3000,000 won and the market value corresponding to the above Kim Young-man's value.

C.On the other hand, on September 22, 1989, prior to the imposition of the above gift tax, the Defendant’s safe obtained the registration of creation of a collateral on the land and the 7th floor building on September 30, 1995, the above Seocho-dong 465-20 won for securing the claim for the loan, with respect to the debtor’s accommodation and the 465th floor building on September 30, 1995. At that time, the registration of establishment of a collateral security interest was completed on July 22, 1989 with respect to the above 465-20 site, the Busan National Mutual Saving and Finance Company, Busan National Mutual Savings and Finance Company, the debtor’s accommodation, the maximum debt amount 225,000,000 won, and the registration of establishment of a collateral security interest was completed on June 7, 1993 as Busan National Mutual Savings and Finance Company, the debtor, the debtor, the maximum debt amount 120,000 won.

D.However, as the above Busan National Mutual Savings and Finance Company did not repay its debt around June 16, 1998, the above real estate was awarded to the non-party head on April 23, 1999 as a result of the auction procedure by applying for a real estate auction on the above land and its ground building with the Busan District Court Decision 98Ma49103, the above real estate was awarded to the non-party head on June 23, 199, and the above auction court on June 16, 1999, paid dividends of 1,793,941,79 won after deducting the execution expenses from the successful bid price of the above real estate, etc. on June 16, 1999, the first priority in distributing 261,143,420 won to the Busan National Mutual Savings and Finance Company of Korea, the second priority in distributing 1,532,798,379 won, each of the above gift tax and additional dues, and did not request the plaintiff to pay all the remaining dividends to the defendant.

2. The plaintiff's assertion

The plaintiff asserts that the gift tax imposed on the constructive gift under the above Inheritance Tax Act is the corresponding tax under Article 35 (1) 3 of the Framework Act on National Taxes and Article 18 (1) of the Enforcement Decree of the same Act, regardless of whether the statutory due date is earlier than the registration date of the establishment of the above right of collateral security, the above auction court should pay priority to the plaintiff's above right of collateral security to the defendant's above right of collateral security, so the above auction court should pay priority to the defendant's above right of collateral security on the above date of distribution, but it is erroneous for it. Thus, the distribution schedule

3. The judgment of this Court

(a) Relevant statutes;

(1) Article 35(1) of the Framework Act on National Taxes provides that "national taxes, additional dues, or expenses for disposition on default shall be collected in preference to other public imposts or other claims in relation to the preferential relationship between national taxes and general claims: Provided, That this shall not apply to any public imposts or other claims falling under any of the following subparagraphs." Article 35(1) provides that "Where national taxes or additional dues (excluding national taxes and additional dues imposed on the property) are collected from proceeds from the sale of the property for which the fact that the establishment of the right of lease on a deposit basis, the right of pledge, or the mortgage has been registered before the due date (hereinafter referred to as "legal due date") is proved as prescribed by the Presidential Decree, the right to lease on a deposit basis, the right of pledge, or the mortgage shall take precedence over national taxes." Article 18(1) of the Enforcement Decree of the Framework Act provides that the national taxes and additional dues imposed on the property shall take precedence over national taxes, that is, inheritance tax, the gift tax and the revaluation tax shall take precedence over national taxes:

(2)Article 34-2(1) of the above Inheritance Tax Act provides that in case where a property is transferred to a person in a special relationship as determined by the Presidential Decree as consideration for significantly low value, the transferor of the property shall be considered to have donated the amount of money equivalent to the difference between the price and the market price to the person in a special relationship as determined by the Presidential Decree who takes over the property in consideration of the significantly high value, and that in case the transferee of the property takes over the property from a person in a special relationship as determined by the Presidential Decree, the transferor shall be deemed to have donated the amount equivalent to the difference between the price and the market price to the transferor at the time of taking over the property. Article 41(1) of the Enforcement Decree of the above Act provides that the transferee shall be deemed to have donated the transferor at the time of taking over the property. Article 41(2) of the above Act provides that the value of the property which is remarkably low means 70/100 or less of the value appraised by the transferor in accordance with Articles 5 through 7 of the above Act.

(b) Markets:

Article 35 (1) 3 of the Framework Act on National Taxes intends to harmonize judicial requests to guarantee transaction safety and public interest requests to realize tax claims with respect to the secured real rights accompanying public notice. Thus, even if the pertinent tax is priority over claims secured by the secured real rights, it shall not infringe on the essential contents of the secured real rights. Therefore, the "national tax imposed on the property" as mentioned above means national tax imposed solely on the person who acquired the secured real rights who owns the property in question, because it can be reasonably predicted that the secured real rights will be imposed on the property in the future, and only on the person who owns the property in question. (See Supreme Court Decision 96Da23184 delivered on March 18, 199) In this respect, even if gift tax is prescribed as the pertinent tax without the delegation of the mother law, it shall not be deemed that all gift tax is the pertinent tax uniformly, but it shall be interpreted limited to the pertinent scope through the interpretation and application of individual laws and regulations that are the basis for imposing gift tax.

From this point of view, in light of the above-mentioned facts and the provisions of the relevant Acts and subordinate statutes, gift tax under Article 34-2 of the above Act, which is the first ground for such imposition, is deemed as having been donated to the amount equivalent to the difference between the price and the market price when the type, intangible property, de facto or de facto rights, etc. are transferred for the price lower than the market price in light of the above-mentioned facts and the principle of law. Considering the above-mentioned facts and the above-mentioned legal provisions, it is difficult to view that the delivery of the above-mentioned share to have a capacity to pay gift tax on the property owned by the government without labor is more distant from the nature of the pertinent tax, so it is difficult to view that the delivery of the above-mentioned share to have a duty to pay gift tax on the property in question is more likely to have been imposed on the property in question at the time of establishment of the above-mentioned law, and thus, it is difficult to see that the transferor of the above-mentioned share was more likely to have been registered in the above-mentioned law and thus, it is difficult.

Therefore, since the gift tax and additional dues on the plaintiff's assertion are not the pertinent tax, they cannot take precedence over the claims secured by the above-mortgaged mortgage of the defendant's credit cooperative established prior to the statutory due date. Therefore, the plaintiff's assertion that the dividend of this case is inappropriate from the

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court below is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-young (Presiding Judge)