If a request for delivery is legitimate, it shall not affect the right to preferential payment on the actual legal date.

Even if the statutory date was erroneously stated at the time of request for delivery, as long as the request for delivery is legitimate, it shall not affect the preferential right to payment on the actual statutory date

2011 Single 65872 Demurrer against distribution

AAAAAAAA professional company

Korea

January 20, 2012

February 17, 2012

1. The plaintiff's claim is dismissed.

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

On October 6, 2011, the Gwangju District Court deleted the amount of 6,400,000 won for the defendant among the distribution schedule prepared by the same court on October 6, 2011, and revises the amount of 119,745,432 won for the plaintiff as 126,145,432 won for the plaintiff.

1. Judgment on the plaintiff's claim

(a)the basic facts;

(1) On April 20, 2010, with respect to the 000-0 square meters of land for a factory, 1,286 square meters, etc. in the Banyang-gun, Namyang-gun, the State Bank of Gwangju District Court completed the registration of creation of a mortgage on April 20, 2010 under the receipt of No. 6132, with respect to the registration of creation of a mortgage on April 20, 201, transferred the secured claim and the secured mortgage to the Plaintiff

(2) In the case of a real estate auction in Gwangju District Court 2010 Mata4291, about the real estate stated in the above paragraph (1), the defendant applied for delivery to an auction court on February 22, 2011, and stated the statutory date on June 1, 2010 for value-added tax of KRW 6,400,000, and thereafter requested a second delivery on May 17, 201, and entered the statutory date on April 5, 2010, for value-added tax of KRW 6,400,000.

(3) In preparing a distribution schedule on October 6, 201, the auction court prepared a distribution schedule in which dividends amounting to KRW 6,400,00 and KRW 119,745,432 to the Defendant among KRW 126,279,472, which actually distributed dividends, and the Plaintiff, a creditor and mortgagee, who is the right to collateral security, paid dividends amounting to KRW 129,745,432, and the Plaintiff stated an objection and filed a lawsuit of demurrer against distribution of the instant case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

B. The plaintiff's assertion

(1) The plaintiff asserts that since the duty to pay value-added tax on the import of goods is fixed at the time of filing a tax base and amount of tax with the customs collector, the statutory due date for determining the priority of secured claims, such as mortgage, pursuant to Article 35 (1) 3 (a) of the Framework Act on National Taxes, the statutory due date for the value-added tax is that the above value-added tax is established after the date of establishment of the right to collateral security.

(2) Therefore, since the duty to pay value-added tax on the import of goods becomes final and conclusive when the head of a customs office files a return on the tax base and amount of tax, the statutory due date for determining the priority of secured claims such as mortgage pursuant to Article 35(1)3(a) of the Framework Act on National Taxes shall be deemed to be its time. However, in cases where the government determines or revises the tax base and amount of tax due to failure to file a return on the tax base and amount of tax or errors and omissions in the use of goods in the return, etc., the duty to pay tax becomes final and conclusive at the time of determining the tax base and amount of tax. As such, the notified amount of tax shall be deemed to be the date on which a tax notice was sent in accordance with Article 35(1)3(b) of the National Tax Period Act (see, e.g., Supreme Court Decision 2005Da10845, Feb. 22, 2007). Thus, the Plaintiff’s assertion that the notice of payment was not legitimate after the first date of the Plaintiff’s claim.

2. Conclusion

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