Hayang-2016-Ban-6296 ( December 15, 2016)

No right to receive a dividend as there is no taxation claim cancelled.

Since the defendant revoked the disposition of imposition and becomes retroactively null and void, the defendant has no right to receive a dividend.

2016Na62706 Demurrer against distribution

OO

Korea

Suwon District Court Decision 2016Kadan6296 Decided December 15, 2016

2017.06.22

2017.08.24

1. Revocation of a judgment of the first instance;

2. Of the distribution schedule prepared by the above court with respect to the auction of the real estate rent for the defendant's Republic of Korea No. 20O.O.O.O., the amount of dividend for the defendant's Republic of Korea shall be changed to 0 won, 00 won for the dividend amount for the defendant's AA, and 00 won for the plaintiff, and 00 won for the dividend amount for the plaintiff shall be changed to 20O.O.O., respectively.

3. All costs of the lawsuit are borne by the Defendants.

As set forth in the text.

1. Basic facts

A. BB completed the registration of ownership transfer by the mother of (1) 20O.O.O.O.O.O., 2,072 square meters (hereinafter referred to as "real estate") prior to OOO-Eup OO-type, (2) 571 square meters prior to OO-type (hereinafter referred to as "real estate"), and (3) OO-type 929 square meters (hereinafter referred to as "real estate") such as (3) O-type 929 square meters (hereinafter referred to as "real estate") by inheritance from CCC and completing the registration of ownership transfer from 20O.O.O.O., etc., on the above (3) real estate and newly constructed a single-story detached house (hereinafter referred to as "real estate") on the ground.

B. (1) The establishment registration of a mortgage was completed over the maximum debt amount of the 200O.O.O.O.O.D. D.D., following the continuous increase of the maximum debt amount of the said establishment registration, additional 20O.O.O.O.(2), (3), and (4) real estate was completed in the future of the maximum debt amount of the OOO in the D agricultural cooperative in the future.

C. D. D.D. applied for a voluntary auction on real estate owned by BB(1), (2), (3), and (4) and voluntarily decided to commence auction with 20O.O.O.O.O.O.O.O.O. branch of O.O.O. branch of O.O.O. branch of 20O, and the auction procedure for real estate was in progress.

D. DDR transferred the secured debt of the right to collateral security established on real estate to the Plaintiff (1), (2), (3), and (4) and completed the supplementary registration for the transfer of the right to collateral security (200O.O.O., and the supplementary registration for the transfer of the right to collateral security).

E. In the above voluntary auction procedure, the director of the EE Tax Office under the Defendant’s Republic of Korea requested BB to pay the aggregate of the capital gains tax and the additional dues, which are 20O.O.O.O., and the Defendant AA Si requested BB to pay the aggregate of the legal due date 20O.O.O.O.O., local income tax (transfer income) and the additional dues, and to issue them.

F. Of the amount to be distributed among 20O.O.O.O.O., the auction court set up a dividend table (hereinafter referred to as “instant dividend table”) stating that the Plaintiff, the mortgagee of real estate, who is the right to collateral security (1) shall distribute the amount to the Plaintiff, who is the right to collateral security (1) in the second order, who is the right to collateral security (100%) in the Republic of Korea, that is the right to collateral security (100%) in the third order, the Defendant’s OO(10%) in the Republic of Korea, and OO(100%) in the fourth order.

G. Accordingly, on the date of distribution, the Plaintiff stated an objection against the dividend amount of the Defendant’s Republic of Korea and the dividend amount of Defendant AA against Defendant AA, and filed a lawsuit of demurrer against the instant distribution.

H. Meanwhile, the head of EE Tax Office revoked the imposition of transfer income tax for 20O.O.O.O.O.O.O.O.O.O. on 18,794 square meters of forest land in OO-Eup (hereinafter “the instant forest”) for 200O.O.O. BB.

(Reasons for Recognition) Facts without dispute, entry of Gap evidence 1 through 6, fact-finding results to the EE director of this court, purport of the whole pleadings.

2. Determination

In full view of the evidence mentioned above, Gap evidence, Eul evidence, Eul evidence No. 9, and Eul evidence No. 1, the mother of Eul sold the forest land of this case within the land transaction permission zone to 200O.O.O.F. F., when CCC died, 200O.O.O.O.O.O.O.O.O., while filing a inheritance tax on around 200O.O.O.O.O., the forest of this case was released from the land transaction permission zone, and the defendant Republic of Korea (competent E.O.) imposed capital gains tax on the heir BB of this case on the above 200O.O.O.B., it is recognized that the above O.O. had no right to impose capital gains tax on the above O.O. under the above 200O + that the above 20O was subject to the above disposition of imposition of capital gains tax on the above O.O.O. under the circumstances that the above 200O was void.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted in its entirety on the grounds of its reasoning, and since the judgment of the court of first instance is unfair on the grounds of its conclusion, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and each of the dividend amounts of the plaintiff and the defendants in the distribution schedule