prior to the statutory due date of local tax, dividends shall be paid to the mortgagee.

As a result of the local government's wrong date of local tax, it constitutes unjust enrichment that Korea has received dividends in preference to collateral security.

Article 35 of the Framework Act on National Taxes

2018dada 112748 Undue gains

XX Kim

Korea

November 13, 2018

December 18, 2018

1. The defendant shall pay to the plaintiff 118,808,920 won with 15% interest per annum from May 3, 2018 to the day of complete payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. On July 19, 2012, AAA Credit Union concluded a monetary loan agreement with Non-Party BB Co., Ltd. (hereinafter collectively referred to as "non-party B") on July 20, 2012, and completed the registration of creation of mortgage (hereinafter referred to as "mortgage of this case") with the value of KRW 1,638,00,000 on four parcels of land and its ground buildings, machinery, and equipment (hereinafter referred to as "mortgage of this case") as the secured claim on July 20, 2012, with the value of KRW 1,638,000,000 as the maximum debt amount for the non-party AA Credit Union's land and four parcels of land and its ground facilities and equipment (hereinafter referred to as "mortgage of this case").

B. Meanwhile, as the non-party company did not pay national taxes, such as value-added tax, on May 21, 2013, the pertinent real estate was seized pursuant to Article 24(1) of the National Tax Collection Act (amended by Act No. 11845, Aug. 29, 2013). The OOO seized the instant real estate pursuant to Article 91 of the Framework Act on Local Taxes (amended by Act No. 12047, Aug. 13, 2013) as the non-party company did not pay local taxes.

C. On September 7, 2016, AAA Credit Union applied for a voluntary auction with the Daegu District Court 2016 another OOOO to implement its right to collateral security on the instant real estate (hereinafter referred to as “instant auction procedure”). On April 23, 2014, the said court decided to commence auction as an OO on April 23, 2014 (hereinafter referred to as “instant auction procedure”).

D. On December 12, 2016, when the instant auction procedure was in progress, AAA Credit Union transferred its right to collateral security against the non-party company to the Plaintiff, and completed the supplementary registration of the transfer of collateral security to the Plaintiff on December 13, 2016. The Plaintiff filed a report on the succession of right in the instant auction procedure.

E. In the instant auction procedure, on November 24, 2017, the head of the DD Tax Office, under the Defendant’s control, requested the issuance of KRW 149,966,340, such as acquisition tax of the non-party company, and the OO market claimed delivery of KRW 141,35,730 on February 21, 2018 of the non-party company’s delinquent local tax amount.

F. In the instant auction procedure, the said court distributed KRW 11,461,490, out of KRW 982,775,201, which is to be actually distributed as of March 22, 2018, to the non-party company at OO in the first order at OO. ② The Defendant distributed KRW 118,808,920, the acquisition tax claim of the non-party company, which is the statutory due date for the non-party company on July 20, 2012, in the second order, to the Defendant, and distributed the remaining KRW 852,504,791 to the Plaintiff (the Defendant is deemed to have already received dividends).

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 4, 2-1 to 6, Eul evidence 1 to 4, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The plaintiff asserted that the defendant should return the above amount to the plaintiff, because he received dividends of KRW 118,808,920 from the defendant in the auction procedure of this case, although the plaintiff had the right to receive dividends in preference to the defendant, the defendant asserted that the amount should be refunded to the plaintiff.

B. Determination

In full view of the aforementioned evidence and the fact-finding results, the non-party company reported acquisition tax reduction or exemption to 0 won on the ground that the real estate acquired by the small or medium start-up enterprise in the O market on July 20, 2012 is real estate acquired by the small or medium start-up enterprise in the O market on July 20, 2012. After the OO on June 7, 2013, the non-party company decided payment decision and additional collection of acquisition tax for 69,633,420 won on the ground that the non-party company did not use it directly within 2 years, and sent a notice to the defendant. Accordingly, the statutory due date of the acquisition tax is recognized as having been mistakenly stated on July 20, 2012 on the date of issuance of the notice of tax payment. In light of the above facts-finding facts, the non-party company, the non-party company acquired on July 20, 2012, imposed acquisition tax on the non-party company prior to the statutory dividend date, 18.

Therefore, the defendant is obligated to pay to the plaintiff 118,808,920 won with 15% interest per annum from May 3, 2018 to the day of full payment, which is the day following the delivery date of a copy of the complaint of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.