(a) In case where a taxpayer of the mortgaged real estate is delinquent in the payment of national taxes, whether such taxes may be collected preferentially on the mortgage-backed claims under Article 35 (1) (proviso)3 of the former Framework Act on National Taxes (negative);

B. A person liable to pay gift tax who is the pertinent taxpayer (=be donee) and Article 29-2(2) of the Inheritance Tax Act

A. Under the proviso of Article 35(1)3 of the Framework Act on National Taxes (the provision was amended on December 31, 190), claims secured by a mortgage that is specifically protected with respect to national taxes are interpreted to the effect that the said mortgage is based on the relationship with the mortgagee at the time of the establishment of the mortgage and is based on his/her duty to pay taxes. The mortgage claims excluded from the preferential collection of national taxes, etc., shall not be deemed to be lost under the current law where there is no special provision, even if the mortgagee transferred the mortgaged real estate to a third party and the third party was delinquent in national taxes. Thus, the gift tax, which is the national tax, which is the national tax, imposed on the transferee, cannot be collected in preference to the mortgage.

B. In a case where a gift is made by a transferor of an object, the person liable to pay the gift tax, which is the pertinent tax, shall be the donee who owns the pertinent property, and on the ground that Article 29-2(2) of the Inheritance Tax Act exists, the said gift tax shall not be changed to the donor's own tax as the transferor.

A.B. Article 35(1)3 proviso of the former Framework Act on National Taxes (amended by December 31, 190) and Article 18(1)2 of the Enforcement Decree of the Framework Act on National Taxes

A. Supreme Court Decision 88Meu8385 delivered on September 24, 1991 (Gong1991, 2589)

Korea

Seoul Trust Bank Co., Ltd., Counsel for defendant-appellee

Gwangju High Court Decision 87Na653 delivered on December 4, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (the supplemental appellate brief is examined to the extent of supplement in case of the supplemental appellate brief after the expiration of the period of appeal).

(1) The court below determined that the above real estate was originally owned by Nonparty 1, but the ownership transfer registration was made in the name of Nonparty 2 on April 19, 1985 due to the termination of the trust held on March 28, 198, and that the above real estate was registered on December 18, 1984 with the creditors of the above real estate as the defendant and the principal debtor as 25,000,00 won, and that the above real estate was owned by Nonparty 2, 196.36.6 of the National Tax Law No. 19666, March 11, 1986 (the above real estate is a clerical error in the judgment of the court below 10.10,000 won, and that the above real estate was sold to Nonparty 2, 196,000 won and the above amount of national tax imposed on Defendant 1,60,000 won, and that the above real estate was sold to Nonparty 2, 1988.6

The proviso of Article 35(1)3 of the Framework Act on National Taxes (the provision was amended on December 31, 1990) is a provision that takes into account judicial requests to guarantee the safety of modern transactions centered on the security right attached to the public notice and harmony with the public interest requests to secure the compulsory performance of tax claims. In particular, claims secured by a mortgage prior to the national tax under this provision should have been established one year prior to the due date for national tax payment under the above provision, and one year prior to that provision, it is interpreted that the provisions to the effect that the mortgage was based on the duty to pay taxes on the property, which is the object of the right to lease on a deposit basis, pledge, or mortgage, and the so-called national tax is a tax claim imposed on the property, which is the object of the right to lease on a deposit basis, pledge, or mortgage, and it is reasonable to interpret that claims secured by the mortgage prior to that time limit take precedence over claims secured by the mortgage owner with the mortgage owner under the above subparagraph 3, and even if the secured claims excluded from such priority collection of national taxes are transferred to a third party 98.

Therefore, the court below is just in holding that the gift tax, which is the national tax imposed on the non-party 2 who was the mortgagee who transferred the real estate of this case, cannot be collected preferentially in the absence of any tax collection prior to the above mortgage. Therefore, it is not erroneous in the misapprehension of the legal principles on the priority allocation of the corresponding tax under the Framework Act on National Taxes and the Enforcement Decree of the Enforcement Decree thereof. The arguments are groundless.

(2) In a case where a gift is made by a transferor of an object, the person liable to pay the gift tax, is the donee who owns the pertinent property, and there is a provision under Article 29-2(2) of the Inheritance Tax Act, and the said gift tax does not change to his own tax on the donor, who is the transferor. On the above premise, the lower court determined that the gift tax of this case, which is a national tax imposed on the transferee, who is the donee, cannot be considered as having priority over the Defendant’s secured claim. Therefore, the lower court did not err in the misapprehension of judgment, such as the theory of lawsuit.

(3) Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-sung (Presiding Justice)