[1] The statutory due date of the comprehensive real estate holding tax and special tax for rural development (i.e., the date of report) and the statutory due date of the comprehensive real estate holding tax in cases where a person liable to pay comprehensive real estate holding tax fails to pay the tax base and amount after filing the tax return and notify the tax amount calculated by voluntarily paying the reported tax amount

[2] The statutory due date of the additional dues (i.e., the time when the notified payment deadline was exceeded)

[1] According to Article 22(1) of the Framework Act on National Taxes, Article 10-2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893 of Feb. 28, 2007), Article 16(1) of the former Comprehensive Real Estate Tax Act (amended by Act No. 8235 of Jan. 11, 2007), and Article 7(4) of the former Special Rural Development Tax Act, a liability to pay comprehensive real estate tax and special rural development tax, the principal tax of which are the same, shall be finalized at the time of filing a tax base and tax amount with the competent tax office. As such, in relation to the reported tax amount, the statutory due date for determining the priority of secured claims such as mortgage, etc. pursuant to Article 35(1)3(a) of the Framework Act on National Taxes is the date of filing the tax base and tax amount, and thus notification that the tax amount should be paid by voluntary payment without correction for the matters reported by the tax office is merely a final date for collecting the tax.

[2] Although Article 35(1)3 of the Framework Act on National Taxes does not separately provide for the statutory due date of additional dues, pursuant to Article 2 subparag. 5 of the Framework Act on National Taxes and Article 21 of the National Tax Collection Act, if national taxes are not paid by the due date, additional dues shall be collected in addition to the notified tax amount pursuant to the same Act. Thus, if taxes are not paid by the due date notified in the notice of payment of principal tax by the notice of payment pursuant to Article 9 of the National Tax Collection Act, the additional dues naturally accrue pursuant to the same provision without a separate final procedure by the tax authority and the amount thereof is determined. Therefore, the statutory due date of additional dues shall be deemed to be when the liability to pay additional dues is determined by analogy of the provisions of Article 35(1)3(c) of the Framework Act on National Taxes

[1] Articles 2(1) and 35(1)3(a) of the Framework Act on National Taxes; Article 10-2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893, Feb. 28, 2007); Article 16(1) of the former Gross Real Estate Tax Act (amended by Act No. 8235, Jan. 11, 2007); Article 7(4) of the Act on Special Rural Development / [2] Articles 2 subparag. 5 and 35(1)3(c) of the Framework Act on National Taxes; Article 21 of the National Tax Collection Act

[1] Supreme Court Decision 2002Du5115 Decided October 23, 2003 (Gong2003Ha, 2266), Supreme Court Decision 2003Du8180 Decided September 3, 2004 (Gong2004Ha, 1674) / [2] Supreme Court Decision 2002Da74374 Decided March 11, 2003

Plaintiff

Korea

Seoul High Court Decision 2010Na16214 decided August 12, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding comprehensive real estate holding tax and special rural development tax

A. According to the provisions of Article 22(1) of the Framework Act on National Taxes, Article 10-2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893, Feb. 28, 2007); Article 16(1) of the former Comprehensive Real Estate Tax Act (amended by Act No. 8235, Jan. 11, 2007); and Article 7(4) of the Act on Special Rural Development and Fisheries, a liability to pay comprehensive real estate tax and special rural development tax, the principal tax of which are the same, shall be determined at the time of filing a tax base and tax amount with the competent tax office. As such, in relation to the reported tax amount, the statutory due date for determining the priority of secured claims such as mortgage, etc. shall also be the reporting date.

On the other hand, it is merely a final tax collection disposition that the taxpayer of comprehensive real estate holding tax reported the tax base and the amount of tax and notifies the taxpayer to pay the amount of tax calculated by voluntarily paying the amount of tax without any correction as to the reported matters by the tax authority, which is merely a final tax collection disposition for the collection of the final tax (see Supreme Court Decisions 2002Du5115, Oct. 23, 2003; 2003Du8180, Sept. 3, 2004, etc.).

B. According to the reasoning of the judgment below, the court below acknowledged that the non-party reported 31,353,083 won of comprehensive real estate holding tax in 2007 and 6,270,616 won of the amount of special rural development tax on December 11, 2007, but the non-party's government chief of the tax office determined 32,32,760 won of comprehensive real estate holding tax in 2007 and 6,464,50 won of special rural development tax and 6,50 won of the above amount of comprehensive rural development tax and 30th special rural development tax and 0th special rural development tax were determined on March 31, 208 by the defendant's tax base and tax amount, or 30th special rural development tax and 20th special rural development tax were determined on March 31, 200 of the above 20th special rural development tax and 0th special rural development tax were determined on the non-party's tax base and tax amount.

C. However, we cannot agree with the above judgment of the court below.

Even according to the reasoning of the judgment of the court below, the head of the tax office of the Speaker notified the original calculated tax amount (32,760 won of comprehensive real estate holding tax, 32,760 won of special rural development tax, 6,464,50 won of special rural development tax) which was calculated by deducting 3/100 of the calculated tax amount (31,353,083 won of comprehensive real estate holding tax, and 6,270,616 won of special rural development tax) on the premise that the non-party shall pay the comprehensive real estate tax and special rural development tax by the due date by the due date, as above, on December 11, 2007, but did not pay it by December 15, 2007, but did not pay it by December 15, 2007.

If the facts are identical, it is merely a collection disposition for the collection of the tax for which the tax liability has already been determined, and it does not constitute a case where the tax authority makes a decision of correction on the tax base and tax amount due to omissions or errors in the details of the return. Thus, in light of the legal principles as seen earlier, the statutory due date of the above comprehensive real estate holding tax and special rural development tax shall be deemed as December 11, 2007, which is the date of the report of the Nonparty.

Nevertheless, the court below determined that the Defendant’s comprehensive real estate tax and special rural development tax cannot take precedence over the Plaintiff’s right to collateral security. In so doing, the court below erred by misapprehending the legal principles on the priority of the taxation claims and real estate rights. The Defendant’s assertion pointing this out has merit.

2. As to the additional dues

A. Although Article 35(1)3 of the Framework Act on National Taxes does not separately provide for the statutory due date of additional dues, pursuant to Article 2 subparag. 5 of the Framework Act on National Taxes and Article 21 of the National Tax Collection Act, if national taxes are not paid by the due date, additional dues shall be collected by adding the notified amount to the notified amount of tax pursuant to the same Act. Thus, if taxes are not paid by the due date notified in the notice of payment of principal tax pursuant to Article 9 of the National Tax Collection Act, the additional dues naturally accrue pursuant to the same provision without a separate final procedure by the tax authority and the amount thereof is determined. Therefore, the statutory due date of additional dues shall be deemed to be when the liability to pay additional dues is finalized by analogy of the provisions of Article 35(1)3(c) of the Framework Act on National Taxes, i.e., when the due date notified in the notice of payment is imposed (see Supreme Court Decision 2002Da74374, Mar.

B. On March 7, 2008, the court below notified the payment deadline of comprehensive real estate tax and special rural development tax to be paid by the non-party on March 31, 2008, with the payment deadline of comprehensive real estate tax and special rural development tax to be paid by the non-party on March 31, 2008. The statutory deadline of the above additional dues is the date when March 31, 2008, which is the payment deadline of comprehensive real estate tax and special rural development tax, was the date when the above additional dues were imposed on March 31, 2008. The date of establishment of the plaintiff's right to collateral security was March 5, 2008, and thus, the plaintiff's claim for the correction of the amount of dividends of the defendant equivalent to the above additional dues was accepted.

C. The court below is justifiable in light of the above legal principles that determined that the statutory due date of the above additional dues arrived after the establishment of the plaintiff's right to collateral security. However, among the 117 houses owned by the non-party as objects of taxation, the amount equivalent to the value of the real estate in this case as to the total value of the above 117 houses among the above 3,490,440 won of the total real estate tax and special rural development tax of this case calculated as objects of taxation shall be deemed to have priority over the plaintiff's right to collateral security (see Supreme Court Decision 2000Da58088 delivered on February 23, 2001). The court below determined that the total amount of the additional dues was subordinate to the plaintiff's right to collateral security without examining specifically the amount which takes precedence over the plaintiff's right to collateral security among the above additional dues. The court below erred by misapprehending the legal principles on the claims for collateral security and the right to collateral security, or failing to exhaust all necessary deliberations. The defendant's assertion pointing this out is justified.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)