Tax Tribunal 2010Gu1126 (Law No. 18, 2010)

Disposition of seizure on the property of a third party who is not a taxpayer shall be null and void as it is impossible to legally realize the contents of such disposition.

When a trust relationship under the Trust Act is established, the trust property shall not be seized against the trust property under the name of the trustee due to a taxation claim on the truster, and thus, the taxation claim on the trust property exceptionally allowed pursuant to the proviso of Article 21(1) of the Trust Act shall be deemed to mean only the taxation claim imposed on the trustee, who

2010Guhap4072 Nullification, etc. of attachment disposition

XX Trust Co., Ltd.

Head of the Gu Tax Office

May 25, 2011

July 6, 2011

1. We affirm that each attachment disposition taken by the Defendant against the real estate listed in the separate sheet on February 2, 2010 is invalid.

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

The primary purport of the claim is as shown in the text of the claim.

Preliminary claim: The attachment disposition by the defendant on February 2, 2010 against the real estate listed in the separate sheet shall be revoked.

1. Details of the disposition;

A. XX agreed club Co., Ltd. (hereinafter referred to as "non-party company") concluded each real estate security trust agreement between the Plaintiff and the Plaintiff on January 20, 2006, each of the real estate listed in the separate sheet Nos. 3 through 5, 7, 8, 10 through 13, the real estate listed in the separate sheet No. 1, 2, and 9 on January 22, 2007, and each of the real estate listed in the same list No. 6 on August 1, 207, trusting the Plaintiff, and completed the registration of ownership transfer for the reasons of trust in the future of the Plaintiff on the date of the contract (hereinafter referred to as "real estate of this case").

B. The Defendant, on February 2, 2010, seized the instant real estate (hereinafter “instant disposition”) on the ground that the Nonparty Company failed to pay the aggregate of KRW 75,860,330 of the comprehensive real estate holding tax for the year 2008 and 2009.

[Ground of recognition] Facts without dispute, each entry in Gap evidence 1 to 4 (including provisional number), and the purport of the whole pleadings

2. The plaintiff's assertion

In the case of trust property, in principle, compulsory execution is prohibited, but it is exceptionally permitted only when it falls under the proviso of Article 21(1) of the Trust Act. The instant disposition is a seizure of a third party’s property, and it does not constitute an exception under the proviso of Article 21(1) of the Trust Act, and thus is null and void

3. Related statutes;

4. Determination

A. According to the provisions of Article 24 of the National Tax Number Act, which provides for the requirements for seizure as a disposition on default, in any case or where the subject matter of seizure is limited to the taxpayer’s property, a disposition of seizure against a third party’s property, which is not a taxpayer, shall not be legally realized (see, e.g., Supreme Court Decision 2000Da68924, Feb. 23, 2001). Moreover, if a trust relationship between the parties is established under the Trust Act by transferring the ownership of real estate to the trustee by the truster, the trust property shall be reverted to the trustee and shall not be deemed the truster’s property after the trust is entrusted. Accordingly, even if the truster of trust property is a taxpayer, seizure against the trust property reverted to the trustee based on the truster’s tax claims against the truster shall not be effective as a seizure against the third party’s property (see, e.g., Supreme Court Decision 96Da17424, Oct. 15,

Since the instant real estate is the property that the non-party company entrusted to the Plaintiff, the Defendant’s seizure of the instant real estate, the trustee, based on the tax claim against the non-party company that is the truster, cannot be legally realized, and thus is null and void.

B. As to this, the defendant's taxation claim against the non-party company falls under "the right arising in the course of performing the trust business" under the proviso of Article 21 (1) of the Trust Act, and thus, the defendant asserts that the disposition of this case is lawful, since compulsory execution is exceptionally allowed on

The "right arising from the management and disposal of the trust property" under the proviso of Article 21 (1) of the Trust Act includes not only the right arising from the management and disposal of the trust property (such as the trustee's right to claim expenses and damages under Article 42 of the Trust Act, and the right to claim remuneration under Article 43 of the same Act) but also the tax claim on the trust property, which is the right related to the trust property directly to the trust property. However, when a trust relationship is established under the Trust Act, the trust property is reverted to the trustee, and it cannot be seized against the truster's trust property due to the trustee's tax claim against the truster (see Supreme Court Decision 96Da17424, Oct. 15, 196). Accordingly, the claim against the defendant's taxation claim regarding the trust property that is exceptionally permitted under the proviso of Article 21 (1) of the Trust Act shall be deemed to mean the taxation claim that is imposed on the trustee, not the truster. Therefore, the defendant's assertion is without merit.

5. Conclusion

Therefore, the plaintiff's primary claim of this case is reasonable, and it is decided as per Disposition with the assent of all participating Justices.