It is difficult to see that there is a serious defect in the taxation disposition and the defect is obvious.

The evidence submitted by the Plaintiff alone is insufficient to recognize that there is a serious defect in the Defendant’s taxation disposition, and that there is no other evidence to acknowledge that the taxation disposition has been revoked or that it is reasonable to do so. Therefore, the Plaintiff’s assertion on this part is without merit.

Article 154 of the Civil Execution Act: Lawsuit of Demurrer, etc.

2014 Gohap35087 Demurrer against distribution

OOOO architect office of a corporation

Korea

June 23, 2016

September 27, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Of the distribution schedule prepared by the above court on June 27, 2014 with respect to a compulsory auction case of real estate (Seoul Central District Court 2013TTW 30715), the amount of dividends to the plaintiff shall be 108,190,569 won, and the amount of dividends to the defendant shall be 1,220,854,043 won, 112,63,474 won, respectively.

1. Basic facts

A. Status of the parties

1) The Plaintiff, as a creditor to A, participated in the distribution procedure by demanding a distribution in the real estate compulsory auction procedure (hereinafter referred to as “instant auction procedure”) that was commenced in Seoul Central District Court No. 2013, 2013, 30715, as to the OA's first basement No. 101 and the fifth floor No. 501 (hereinafter referred to as “each real estate of this case”), located in OOO-dong 1303-31, Seoul, OO-dong O-dong 1303-31.

2) The Defendant filed a claim for delivery at the instant auction procedure on the basis of the comprehensive income tax in 2011 against AA as of November 30, 2011, June 19, 2012, and July 20, 2013 on the statutory due date.

B. Compulsory auction of each real estate of this case

1) According to the instant auction procedure, on June 27, 2014, the order of the Defendant’s distribution was recognized as No. 4, and the Defendant distributed KRW 1,220,854,043 to the Defendant, and the distribution schedule was formulated with the content that the Plaintiff did not distribute to the Plaintiff.

2) The Plaintiff appeared on the aforementioned date of distribution, and raised an objection against the entire amount distributed by the Defendant, and filed a lawsuit of demurrer against the distribution on July 3, 2014.

Each description of Gap's 4, 6, 7, and Eul's 1 through 11 (including a Serial number; hereinafter the same shall apply), and the purport of the whole pleadings, without any dispute arising from recognition;

2. The assertion and judgment

A. The plaintiff's assertion

The Defendant imposed global income tax on the AA on the basis that the AA reported excessive income in 2011. However, given that the AA’s income in 2011 was extremely low compared to the actual income reported, global income tax imposed by the Defendant on the AA is unfairly excessive calculated. Therefore, among the dividend table prepared in the instant auction procedure, the amount of dividend against the Plaintiff should be adjusted to KRW 108,190,569, and KRW 1,220,854,04,043 should be adjusted to KRW 1,12,63,474, respectively.

B. Relevant legal principles

As long as a taxation disposition cannot be deemed null and void as a matter of course, even if there is an unlawful ground for revocation of the taxation disposition, such taxation disposition is valid until it is lawfully revoked by the fairness of the administrative act or by the executory power (see Supreme Court Decision 9Da20179, Aug. 20, 199). Thus, in a civil procedure, the validity of such taxation disposition cannot be denied (see Supreme Court Decision 99Da20179, Aug. 20, 199). In order for the administrative disposition to be null and void as a matter of course, the disposition is unlawful, as well as the defect must be important and apparent, and the apparent defect in this context refers to the apparent defect itself is objectively revealed (see Supreme Court Decision 91Da26690, Oct. 22, 19

Meanwhile, in general, a taxation disposition made on a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, is significant and apparent, but in case where there are objective circumstances that could mislead him to believe that it is subject to taxation with respect to any legal relation or factual relation which is not subject to taxation, if it can only be clarified that the place of taxation is subject to taxation should accurately investigate the factual relation, it cannot be deemed as apparent even if the defect is serious, and thus, it cannot be deemed as void as a matter of course (see Supreme Court Decision 2001Du7268, Sept. 4, 2002).

C. Determination

However, this part of the Plaintiff’s assertion on a different premise is without merit, since the evidence submitted by the Plaintiff alone is not sufficient to recognize that there was a significant defect in the Defendant’s taxation on the AA and its defect is apparent, and there is no other evidence to acknowledge that the tax disposition has been revoked or that it has been null and void as a matter of course. (The evidence submitted by the Plaintiff alone is insufficient to deem that the global income tax imposed by the Defendant on the AA was excessively calculated, as the Plaintiff reported the income in 2011 excessively higher than the actual amount, and there is no evidence to acknowledge otherwise).

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.