The legitimacy of the assertion that a taxation disposition constitutes a void as a matter of course and thus the dividend should be revoked.

If the second taxpayer imposed tax on the Plaintiff on the ground of a construction contract and a construction commencement report, etc. on the building, even if the non-party company did not actually construct the building, the defect in such tax disposition can only be found to have been accurately investigated the facts. Thus, it cannot be said that the defect is apparent.

1. The plaintiff's claim is dismissed.

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

Of the dividend table prepared by the above court on December 28, 2007 with respect to the case of voluntary auction of real estate at the Seoul Western District Court 2007 Tata 5553, the dividend amount of 72,262,587 won against the defendant shall be 22,586,510 won, and the dividend amount of the plaintiff shall be corrected to 49,676,077 won.

1. Facts of recognition;

A. The Defendant’s ○○ Construction Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) defaulted on national taxes, and on November 4, 2004, attached the Plaintiff’s ○○○-dong 435-○○○○○○○○○ 502 (hereinafter “instant real estate”).

B. The new bank, a collateral security right holder, filed an application for voluntary auction of real estate in Seoul Western District Court Decision 2007Ma5553 regarding the instant real estate, and the said court rendered a decision to commence auction on April 2, 2007 and proceeded with the auction procedure.

C. In the above auction procedure, the defendant filed a claim for delivery of the claim amounting to 86,020,780 on November 30, 2007, and the above claim amount includes ① 41,854,630 won of corporate tax for 2003 (hereinafter referred to as "tax disposition imposing the above corporate tax") and ② 18,727,010 won of value-added tax for 1 year 2003 (hereinafter referred to as "tax disposition") and ③ 2,660,360 won of corporate tax for 204 (hereinafter referred to as "taxation disposition imposing the above corporate tax").

D. On December 28, 2007, the court of execution prepared a distribution schedule (hereinafter referred to as the "distribution schedule of this case") that distributes the amount of KRW 380,720 to the Seoul ○○-gu, Seoul, the delivery authority of KRW 212,849,765, and KRW 140,206,458 to the new bank, the mortgagee of the right to seize, and KRW 72,262,587 to the defendant who is the seizure authority.

E. The Plaintiff appeared on the date of distribution and raised an objection against KRW 60,04,730 out of the amount distributed to the Defendant. On January 3, 2008, the period for filing a lawsuit of demurrer against the distribution of this case, which was within the period for filing a lawsuit.

[Ground of recognition] Evidence No. 4, Evidence No. 13-1, No. 13-2, Evidence No. 1 and No. 2, and the purport of the whole pleadings

2. The plaintiff's assertion

A. Under the premise that the non-party company constructed a building located in the Seoul ○○-dong, Seoul ○○-dong, the Defendant: (a) imposed a construction contract tax on the basis of taxation; (b) the non-party company did not actually construct the above building; and (c) there is no fact that the non-party company was issued a tax invoice; and (b) the above taxation disposition should be revoked

B. Although the non-party company closed its business on June 30, 2004, the non-party company imposed the corporate tax for 2004.

C. Therefore, the instant distribution schedule must be revised as stated in the purport of the claim.

3. Determination

The plaintiff filed a lawsuit of demurrer against the distribution on the premise that the taxation disposition is void as a matter of course. The plaintiff's claim of this case, which is based on the premise that the taxation disposition is void as a matter of course, is insufficient to say that there is a serious defect in the taxation disposition as a matter of course (see Supreme Court Decision 94Da55019, Apr. 28, 1995). The evidence submitted by the plaintiff alone is insufficient to find that ①, ②, ③ there is a serious defect in the taxation disposition, and the defect is objectively obvious (in addition, clear). Thus, the plaintiff's claim of this case, which is based on the premise that the taxation disposition is void as a matter of course, is groundless.

On the other hand, if the Defendant alleged the Plaintiff, based on the construction contract for the non-party company's ○○○-dong building located in Seoul, the second taxpayer based on the construction report, the construction report, etc., and the second taxpayer, ②, even if the non-party company did not actually construct the above building, the defect in the said tax disposition can only be found out by accurately investigating the facts. Thus, it cannot be said that the defect is apparent in appearance.

In addition, according to Gap evidence No. 1, although the non-party company was closed on June 30, 2004, the non-party company did not report the tax base and amount of corporate tax based on the non-party company's last day of the business year in 2004 pursuant to Article 60 of the Corporate Tax Act from January 1, 2004 to June 30, 2004, which is the cessation date, within 3 months from the last day of the business year in 2004, the non-party company did not report the tax base and amount of corporate tax pursuant to Article 60 of the Corporate Tax Act. Thus, it appears that the Gangwon-nam Tax Office having jurisdiction over the non-party company determined the tax base and amount of tax in accordance with Article 66 of the Corporate Tax Act to the plaintiff who is the second taxpayer.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as there is no ground.