Priority of national tax claims on real estate secured by security;

Where there is a tax claim on the real estate for which the security right has been established due to the public notice, the priority between the tax claim and the security right except for the relevant tax shall be determined by the prior date of the statutory due date and the date of the establishment of the security right.

Article 35 of the Framework Act on National Taxes

2012 Gohap12 Demurrer against the distribution

Section AA

Korea

May 17, 2012

June 14, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Of the distribution schedule prepared by the same court on December 26, 2011, the dividends to the defendant against the defendant shall be KRW 000,000, and KRW 000,000, and KRW 000,000, and KRW 000,000,00,00,00,000,00 for the dividends against the plaintiff AB shall be corrected respectively.

1. Basic facts

The following facts may be found, or found to be under dispute between the parties, by taking into account the whole descriptions and arguments of Gap evidence 1, evidence 2-1 through 4, evidence 3, and evidence 4, and evidence 1:

A. As to the real estate listed in the separate sheet owned by thisCC (hereinafter “instant real estate”), the Plaintiff Cho Jong-A completed the registration of the establishment of a neighboring mortgage with the maximum debt amount of KRW 000 as of September 4, 2009, which was received on September 4, 2009, with respect to the instant real estate as set forth in the separate sheet owned by thisCC (hereinafter “the instant real estate”). The Plaintiff Lee Dong-B completed the registration of the establishment of a neighboring mortgage with the maximum debt amount of KRW 00,000,000,000,000,000,000

B. The Defendant (hereinafter “Defendant”) attached the instant real estate on September 27, 2010 on the ground that thisCC, the owner of the instant real estate, sold the above-ground building 000 OOdong, Seocho-gu Seoul, and the statutory due date was delinquent in paying KRW 000,000, capital gains tax on May 20, 2009.

C. On December 26, 2011, the instant real estate was under auction process with Suwon District Court Branch Branch Branch of Suwon District Court of 2010, 7879, and 2010, around 11823 (combined), and a distribution schedule was prepared to distribute the remainder of 00 won, excluding enforcement costs and the amount of dividends to the said right holder, and distribute 000 won to the Plaintiff.

D. On December 26, 2011, the Plaintiffs appeared on the aforementioned date of distribution, and stated an objection against the Defendant’s dividends, etc., and filed a lawsuit of demurrer against distribution on January 2, 2012, which was within one week thereafter.

2. The plaintiffs' assertion and judgment

A. The assertion

As of September 4, 2009, the establishment date of their right to collateral security was earlier than September 27, 2010, which was the time when the defendant was seized, the plaintiffs' right to collateral security should be preferentially repaid, and while the real estate in this case was registered on August 31, 2009, when the registration date of collateral security was due to the statutory due date, and thus, the plaintiffs could not anticipate the defendant's tax claim as the plaintiffs did not exist at the time of the statutory due date. Thus, Article 35 (1) 3 of the National Tax Act cannot be applied as it is.

B. Determination

Article 35 (1) 3 of the Framework Act on National Taxes provides that the order of priority between the taxation claims and the security rights except for the pertinent taxes shall be determined by the statutory due date and the date of the establishment of the real rights to the real estate in case there is a tax claim which comes due prior to the date of the establishment of the real rights to the real estate, and that the defendant's legal due date of the taxation claims is earlier than August 24, 2009 and September 4, 2009, which is the date of the establishment of the plaintiffs' right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right of the plaintiff is without merit. In addition, it cannot be deemed that the taxation authority of the right to the right to the right to the right to the right to the right to the right to the security upon the statutory due date cannot be seen as infringing the defendant's right to the right to the right to the right to the security interest (see the Constitutional Court Decision 2005HunBa60, May 31, 207).

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.