Seoul Central District Court-2013-Gohap-539582 (Law No. 13, 2014)

It is reasonable to see that a business operator and a person liable to pay value-added tax are a truster in handling trust affairs, such as development, management, and disposal of trust property.

The amount equivalent to the value-added tax collected by the trustee upon the disposal of the trust property by the buyer shall be deemed to belong to the trust property as part of the purchase price. In this case, the amount equivalent to the value-added tax, out of the sales revenue received by the Defendant

Article 19 of the Trust Act, subrogation

Article 42 of the Trust Act, the trustee's right to claim for damages

Seoul High Court 2014Na2018504 Agreements

Korea

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Seoul Central District Court 2013 Gohap539582

2014.26

November 03, 2014

1.The judgment of the first instance shall be modified as follows:

All of the plaintiff's claims are dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff OOOO directors and a copy of the complaint of this case with 20% interest per annum from the day following the day on which the plaintiff is served with a copy of the complaint of this case to the day of full payment (the plaintiff shall change the claim for the contract that was primarily claimed at the court of first instance to the preliminary claim, and the claim for damages filed at the court of first instance to the preliminary claim shall be changed to the primary claim).

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance court, the part against the plaintiff falling under the order to pay the following shall be revoked. The defendant shall pay to the plaintiff the amount calculated by applying each ratio of 6% per annum from September 10, 2013 to May 13, 2014, and 20% per annum from the next day to the date of full payment.

B. Defendant

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Basic facts

(a) Conclusion of land trust contracts;

On December 10, 2002, BBB Co., Ltd. (hereinafter referred to as “BBB”) entered into a land trust agreement with the Defendant for the sale of new OOOtel-type business (hereinafter referred to as “instant business”) with the Defendant on December 10, 2002 (Evidence 3; hereinafter referred to as “instant trust agreement”).

The truster BBB and the trustee shall enter into a trust contract with the trustee as follows:

Article 1 (Trust Purpose)

(1) BB shall entrust the land listed in attached Form 1 (hereinafter referred to as "land") to the defendant, and the defendant shall accept the land.

(2) The purpose of this trust is to construct buildings listed in attached Form (2) (hereinafter referred to as "building") on land and to make land and buildings (hereinafter referred to as "trust real estate") as trust property after collectively referring to land and buildings.

There is a possibility of selling in lots(disposition).

Article 11 [Trust Property] Trust property shall be as follows:

1. Real estate in trust and money in trust;

2. Sale price of trusted real estate (including contract price and intermediate payment);

8. Other assets and obligations arising from the performance of trust affairs.

Article 13 (Beneficiary and Right to Benefit)

1. The beneficiary of this trust shall be BBB.

Article 16 (Management Method of Money Belonging to Trust Property)

(1) Money belonging to trust property may be managed in a manner such as deposit in a financial institution, underwriting or purchase of State or public bonds, corporate bonds, and corporate bonds, and underwriting or purchase of securities authorized by the Financial Supervisory Commission, jointly or independently with money belonging to other trust property that share the management method.

(3) The sale proceeds (including contract proceeds and part payments), deposit, etc. acquired in connection with the sale of real estate in trust may be appropriated for the repayment of the price for construction, borrowed money, obligation for rental deposit, etc. in addition to the method of management prescribed

(4) In cases under paragraph (3), the defendant shall notify the beneficiary of the results of treatment.

Article 17 (Payment of Expenses)

(1) The following expenses shall be borne by beneficiaries:

1. Taxes, public imposts, and registration expenses for the trust property;

2. Design and supervision expenses and construction cost;

3. Repayment of loans, rental deposit, etc. and interest thereon;

4. Repair, preservation, and improvement expenses of real estate in trust, and fire insurance premiums;

5. Expenses incurred in selling in lots and in dealing with rental affairs;

6. Other expenses equivalent to the following subparagraphs:

(2) The defendant shall pay the expenses under paragraph (1) from the trust property, and if it is impossible to pay them, he/she may request and receive them to the beneficiary, and if necessary, have the beneficiary deposit a considerable amount in advance

(4) Where a defendant has paid the various expenses under the preceding paragraph by subrogation, he/she shall be deemed to have received the relevant substitute payments and interest thereon from the trust property.

(5) Taxes and public charges (excluding taxes and public charges accruing in connection with the project until the completion of the project, such as aggregate land tax, business income tax, capital gains tax, acquisition tax, registration tax, etc. following the registration of preservation of buildings) imposed following the implementation of the project shall be borne by the beneficiary and disposed of under paragraph (2).

Article 18 [Appropriation of Expenses Incurred in Realization of Trust Property] Where money belonging to trust property falls short of the repayment of borrowings and interest thereon under Article 4, loss incurred without the defendant's fault in performing trust affairs, other expenses incurred in performing trust affairs and substitute payments of the defendant, which is insufficient to cover, claims shall be made to beneficiaries of the shortage, and where money falls short of the amount, a claim may be made to beneficiaries of the loan, which is the method and value that

Article 24 (Delivery of Trust Property upon Termination of Trust) Where a trust deed is terminated, the defendant shall issue the trust property in accordance with the following methods after obtaining approval from the beneficiary for final settlement, in relation to the certificate of beneficial rights and redemption:

3. Repayment obligations of borrowings, rental deposit, etc., and other obligations shall be disposed of as follows:

(a) The obligation to repay the rental deposit, etc. shall be specified in the lease contract or subject to the consent of the lessee, and the beneficiary shall succeed to it without any separate procedure, and the defendant

B. The defendant may withhold the delivery of money belonging to trust property in order to secure funds for the repayment of borrowed money and other debts, and in the event that it falls short of the reserves, the defendant shall have the beneficiary deposit the shortage with the beneficiary: Provided, That with the consent of the creditor, the defendant may succeed to the borrowed money and other debts to the beneficiary and be exempted from his responsibility.

Article 34 (Registration of Business, etc.)

(1) BBB upon the conclusion of this contract shall be registered at the competent tax office having jurisdiction over the location of the trusted real estate in accordance with the relevant tax-related Acts.

(2) Value-added tax, etc. refunded to a business operator under paragraph (1) shall be comprehensively transferred by the defendant.

(3) If the defendant requests BB to designate the defendant as a tax manager and report him/her to the head of the competent tax office pursuant to Article 33(2) of the Value-Added Tax Act and Article 84(1) of the Enforcement Decree of the same Act, BB shall comply with such request; and the defendant may designate a tax accountant to perform tax affairs as a tax manager and have him/her report, pay, refund and other necessary business affairs; the expenses incurred thereby shall be executed from the trust property

(b) the BBB’s default on value-added tax;

BBB defaulted on the aggregate of the value-added taxes incurred in operating the instant business until the closure of December 31, 2012. The details of the value-added taxes in arrears are as follows.

· omitted-

C. The plaintiff's seizure of claims

On June 28, 2013 and October 2, 2013, the director of the tax office affiliated with the Plaintiff attached taxes, public charges, and tax payment claims under the instant trust contract held by BBB to the Defendant in order to collect the delinquent amount of national taxes from BBB, and notified the Defendant of the attachment, and the above notification was issued around that time.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 6, 11, 13 (including each number), the purport of the whole pleadings

2. Assertion and determination

A. The plaintiff's assertion

1) In the first place, the Defendant, despite a good manager’s duty of care to take measures against BBBB’s failure to pay the value-added tax by keeping the amount equivalent to the value-added tax out of the sales revenue received from the buyer as value-added tax for the purpose and purpose of BBBB, due to the Defendant’s trust remuneration and the Defendant’s use of the amount to be paid as value-added tax as a result of the Defendant’s repayment of the amount leased to BBBB, caused the amount equivalent to the KRW BBB’s total loss to BBB. Accordingly, the Plaintiff, on behalf of BBB, sought compensation for the Defendant.

2) Preliminaryly, there was an express or implied agreement that the Defendant shall pay the value-added tax imposed on BBB under the instant trust agreement to BBBB. Accordingly, the Plaintiff shall exercise the said contractual deposit against the Defendant in accordance with Article 41 of the National Tax Collection Act, in order to preserve the claim for the value-added tax in arrears against the OOOOOBB against the BBB.

B. Determination

1) The Plaintiff asserts that, among the proceeds from sale received by the Defendant from the buyer, the Plaintiff had due care as a good manager to take measures to prevent BBB from being delinquent in value-added tax by keeping the amount equivalent to value-added tax for the purpose and purpose of BBB for the purpose and purpose of BBB, and in violation of the duty of due care to prevent BBBB from being delinquent in value-added tax ( prime claim), BBB under the instant trust agreement, has an explicit and implied right to claim the amount equivalent to value-added tax imposed on BBB against the Defendant. Therefore, in the instant case, it is a question whether the Defendant has a due care to take measures against BBB against default in value-added tax, and whether the amount equivalent to value-added tax has a good manager to pay the amount equivalent to value-added tax.

2) In full view of the following circumstances, it is difficult to view that the Defendant was liable for due care as a good manager to take measures to prevent any default of value-added tax in relation to BBB under the instant trust agreement in relation to BBB, or for paying the amount equivalent to value-added tax, and in violation of this, it is difficult to deem that the Defendant was causing damage to BBB.

① Generally, value-added tax is generally liable for the supplier of goods or services independently for business (Article 2(1) of the Value-Added Tax Act); and trust under the Trust Act provides that the truster shall transfer a specific property right to the trustee or take other measures to manage and dispose of the property right for the purpose of trust (Article 1(2) of the Trust Act). If the trustee supplies goods or services in the course of developing the trust property or managing and disposing of the trust property, the trustee shall become the contractual party and the trustee shall be deemed to be in charge of the trust business. However, in light of this, trust under the Trust Act is deemed to belong to the truster’s account. It is reasonable to view that the trust under the Trust Act belongs to the purchaser of the goods or services under the name of a third party (see Article 6(5) of the Value-Added Tax Act) and the trustee shall be deemed to belong to the purchaser of the goods or services under his/her own name (see, e.g., Supreme Court Decision 90Du300, Mar. 9, 2002).

Article 17 of the Trust Contract provides that the beneficiary shall bear all of the expenses incurred from the trust business as the principal agent of the trust business among the expenses incurred by the trustee in handling the trust business from the truster. However, in light of Article 17(1) of the Trust Contract of this case, the Defendant, who is the trustee, becomes the principal agent of the trust business, bears an external obligation with regard to the registration expenses, design, supervision expenses and construction expenses, etc., it is reasonable to regard that the expenses under Article 17(1) of the Trust Contract of this case are limited to the expenses such as taxes, public charges, etc. imposed on the beneficiary under the name of the trustee, who is the truster, and taxes such as value-added tax imposed on BBB as the trustee does not fall under the expenses under Article 17(2) of the Trust Contract of this case. In addition, it is difficult to interpret that the trust business of this case is not covered by Article 17(1) of the Trust Contract of this case, which is the beneficiary or the beneficiary’s 20th of the trust property without any reasons for the trust business.

⑤ Article 34 of the instant trust agreement provides that, where an input tax amount exceeds the output tax amount, such amount of value-added tax may be included in trust property if there is an amount of value-added tax to be refunded to an truster in excess of the output tax amount, such amount of tax may be included in trust property. The Defendant shall, as required, perform the duties of filing and paying the value-added tax on behalf of the truster and obtain the authority from the truster to spend the expenses incurred therefrom from trust property. However, the amount of value-added tax refunded to the truster is not, in principle, belonging to trust property (see Supreme Court Decision 2000Da33034, Apr. 25, 2003). This is merely a provision that grants the trustee the authority to handle the affairs related to the return, payment, and refund of value-added tax, in order to prevent a failure of the truster to properly deal with the affairs related to the return, payment, and refund of value-added tax, as alleged by the Plaintiff. The foregoing provision does not apply to an agreement that imposes the Defendant’s duty to pay value

(6) In fact, the Defendant: (a) paid BB BB OE in total from April 2003 to July 2004; (b) paid the amount of value-added tax for the quarter of April 2005 to BBB; (c) filed a final return on the value-added tax for the first and second years to the head of Samsung Tax Office in the name of BBBB; (d) filed a final return on the value-added tax for the first and second years in the name of BBB; and (e) filed a final return with the head of the tax office for the first and second years in 2008 with the head of the tax office. However, this is merely a fact that the Defendant exercised the authority to file and pay value-added tax on behalf of BBBBB in accordance with Article 34 of the instant trust deed on behalf of BBBBB for the smooth promotion of the instant project. Therefore, it is difficult to deem that the Defendant executed expenses, such as taxes and public charges stipulated in Article 17 of the instant trust deed, or that the Defendant is liable for BBBB.

3. Conclusion

Therefore, the plaintiff's primary and preliminary claims in this case shall be dismissed in its entirety due to the lack of any ground, and the judgment of the court of first instance which accepted part of the previous primary claims shall be unfair in conclusion. Therefore, the defendant's appeal shall be accepted and the judgment of the court of first instance shall be modified as above, and it is so decided as per Disposition.