Where an objection to the distribution statement is withdrawn in the procedure for disposition on default, whether the original distribution statement is finalized (negative), and whether the head of a tax office may revise the distribution statement in consideration of any other reason with regard to the portion of the original distribution statement whose objection is not confirmed (affirmative)

Unlike the Civil Execution Act, the National Tax Collection Act stipulates in detail the procedures for raising an objection to the distribution statement, but unlike the provisions that stipulate that if the Civil Execution Act has withdrawn the objection to the distribution in the auction procedure, the distribution statement is finalized as it is (Articles 152, 154, and 161 of the Civil Execution Act), there is no explicit provision on whether the distribution statement is finalized if the objection to the distribution statement is withdrawn in the procedure for disposition on default.

However, in full view of the characteristics of the procedure for disposition on default under the National Tax Collection Act, the contents and system of the relevant provisions, the status of the head of a tax office in the procedure for disposition on default, and the legal principles on the withdrawal of administrative acts, etc., even if an objection to the distribution statement is withdrawn in the procedure for disposition on default, it cannot be deemed that the original distribution statement is confirmed as it is, and the head of a tax office may revise the distribution statement in consideration of

Article 83-2 of the National Tax Collection Act, Articles 152, 154 and 161 of the Civil Execution Act

Plaintiff (Law Firm Gangnam et al., Counsel for the plaintiff-appellant)

Korea

Daegu High Court Decision 2017Nu5585 decided December 22, 2017

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 83-2 of the National Tax Collection Act provides that “A delinquent taxpayer may raise an objection against any creditor’s claims, etc. entered in the original distribution statement prepared by the head of a tax office prior to the expiration of the distribution date (Article 1 and 2). Where the head of a tax office does not admit that there is no objection or the content of objection is justifiable, he/she shall immediately determine the original distribution statement (Article 1(3)), and where there is an agreement between the original distribution statement and the delinquent taxpayer, etc., other than the original distribution statement, he/she shall confirm the distribution statement by modifying the original distribution statement (Article 152, 154, and 161 of the Civil Execution Act).” As such, the National Tax Collection Act separately from the Civil Execution Act provides for the procedures for raising an objection to the distribution statement in detail, the distribution statement becomes final and conclusive if an objection to the distribution statement is withdrawn at the auction procedure (Article 152, 154, and 161 of the Civil Execution Act).

However, considering the following circumstances that can be seen in light of the characteristics of the procedure for disposition on default under the National Tax Collection Act, the contents and system of the relevant provisions, the status of the head of a tax office in the procedure for disposition on default, and the legal principles on the withdrawal of administrative acts, etc., the initial distribution statement is not determined even if an objection to the distribution statement is withdrawn in the procedure for disposition on default, and the head of a tax office may revise the distribution statement in consideration of other reasons with regard to the portion for which the objection

A. On the contrary to the purpose of judicial resolution by repayment of general claims where compulsory execution procedures compete with each other under the Civil Execution Act, the procedure for disposition on default under the National Tax Collection Act is to promptly satisfy tax claims by administrative agencies, and there are basic differences in these two procedures. Therefore, the provision of the procedure for objection to the distribution schedule under the Civil Execution Act is applied mutatis mutandis to the procedure for disposition on default, or the provision of the procedure for objection against the distribution schedule under the Civil Execution Act is applied mutatis mutandis to the “if a creditor, etc., raises an objection against the distribution schedule and withdraws it, the initial

B. In addition, unlike the compulsory execution procedure under the Civil Execution Act, the head of a tax office is the person in charge of the procedure, and at the same time, the head of a tax office is the creditor of the national tax who intends to obtain satisfaction with the procedure. However, unlike the civil execution procedure, the head of a tax office, who is the person in charge of the procedure for disposition on default, has no right to dispute as to the distribution statement he/she prepared, contrary to the civil execution procedure. Therefore, it should be deemed that the head of a tax office has the right to revise the distribution statement to prevent infringement

C. Meanwhile, Article 83-2(3) and (4) of the National Tax Collection Act stipulates that the head of a tax office shall confirm a distribution statement as the original tender or revise and confirm it according to the existence of an objection to the distribution statement.

D. Furthermore, even if there was no particular defect at the time of the disposition, and there was no separate legal ground for the withdrawal of the disposition after the disposition, where there was no need to continue the original disposition, or where there was a need for the important public interest, the disposition may be withdrawn by a separate administrative act that would lose its effect (see, e.g., Supreme Court Decision 2003Du10251, 10268, Nov. 26, 2004). In light of such legal principles, the head of a tax office, even if the initial statement of distribution was prepared, may revise the statement of distribution for other reasons before it is finalized.

2. The lower court acknowledged the following facts in full view of the admitted evidence.

A. On September 20, 1999, Nonparty 1, as the owner of the instant real estate, completed the registration of creation of a mortgage over KRW 260 million with respect to the instant real estate to Nonparty 2.

B. On October 18, 2013, the head of the Port Tax Office completed the attachment registration based on the disposition on default on the instant real estate on the grounds of Nonparty 1’s delinquency in taxation.

C. The Korea Asset Management Corporation, on behalf of the head of the Port Tax Office, conducted a public auction procedure on the instant real estate, and prepared a distribution statement (hereinafter referred to as “the first distribution statement”) that allocates KRW 58,563,820, the amount to be distributed on July 16, 2014, to be KRW 2,066,320, 40, 200, 25,760, 3, Nonparty 25,710,000, Nonparty 25,710, and 746,740, which is the third distribution date (hereinafter referred to as “the instant distribution amount”).

D. When the Korea Asset Management Corporation raises an objection to the allocation of the instant shares from Nonparty 1 on the date of the aforementioned allocation, it granted the remainder of the distribution except the instant shares to each distribution authority, and transferred the instant shares to the head of the tax office on July 25, 2014, and the head of the tax office at the port deposited the instant shares as the government custody.

E. However, on July 28, 2014, Nonparty 1 withdrawn an objection to distribution.

F. Meanwhile, the Plaintiff, upon the transfer of the claim regarding the instant amount from Nonparty 2, applied for the payment of the instant amount to the head of the Port Office around May 2016. However, on June 16, 2016, the head of the Port Office rejected the instant amount on the ground that “the circumstance where Nonparty 1 had already discharged all the secured obligations of the registration of the establishment of a neighboring mortgage prior to the date of allocation by Nonparty 1 is confirmed.”

G. On February 2017, the director of the tax office of the port of entry prepared a distribution statement (hereinafter “revision distribution statement”) with the content that the instant amount distributed and the deposited interest of KRW 55,721,620 shall be distributed to the port of entry, and that the amount is distributed to the port of entry (hereinafter “Revised distribution statement”).

3. Examining these facts in light of the aforementioned provisions and legal principles, the part concerning the instant distribution amount in the original distribution statement is not determined as identical to the initial distribution statement by Nonparty 1’s objection and the revised distribution statement by the director of the tax office. Nonparty 1’s withdrawal of the objection cannot be viewed differently solely on the ground that the objection was withdrawn.

In the same purport, the lower court’s rejection of the Plaintiff’s assertion seeking the payment of the instant distribution amount on the premise that the initial distribution statement became final and conclusive due to the withdrawal of Nonparty 1’s objection is justifiable based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors of

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)