Whether it is excluded from the distribution procedure where the State has made a registration of preservation and seizure before the determination of national taxes under Article 24(2) of the National Tax Collection Act after the registration of entry into an auction but fails to apply for dividend by the auction date (affirmative)

Where the registration of the preservation and seizure prior to the determination of national taxes has been completed prior to the registration of the entry into an auction, even though the State did not make an application for dividend by the time of the auction, if there is a creditor who made a provisional attachment execution prior to the registration of the entry into the auction, the amount of dividends to such creditor shall be deposited. Where the seizure is registered prior to the registration of the entry into the auction, even if the head of a tax office does not make an application for dividend by submitting evidential documents which can calculate the amount of national taxes in arrears by the time of the auction, the registration of the seizure is interpreted to have inherent in the above registration of the seizure. In light of the above, the auction court shall prepare a distribution schedule with the content of allocating the amount equivalent to the national taxes in the state tax claims preserved prior to the determination of national taxes and deposit the dividends. However, where the State did not make an application for dividend by the time of the auction after the entry into the auction registration but has not made an expression of intent to preserve the national taxes prior to the date of the auction, the execution court may not be aware of such fact, even if it does not have known, after the entry into the auction registration of the auction.

Articles 14(1), 24(2) and (4) of the National Tax Collection Act, subparagraph 2 of Article 28-2 of the Enforcement Decree of the National Tax Collection Act, Articles 589(3), 605, and 658 of the Civil Procedure Act

Supreme Court Decision 93Da2210 delivered on September 14, 1993 (Gong1993Ha, 2775) Supreme Court Decision 93Da19276 delivered on March 22, 1994 (Gong1994Sang, 1305) 96Da51585 delivered on February 14, 1997 (Gong197Sang, 769)

Korea

This selection (Attorney Han-ro, Counsel for the defendant-appellant)

October 13, 1999

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 June 7, 1999 with respect to the voluntary auction case of real estate (No. 98 Tagie 53050), the Seoul District Court's deletion of KRW 125,640,552 against the plaintiff and KRW 125,640,552 against the defendant, respectively, shall be corrected.

1. The auction and distribution of the case (the fact that there has been no dispute)

A. The Industrial Bank of Korea completed the registration of the establishment of the right to collateral security, which became the Industrial Bank of Korea of Jung-gu, Seoul and the Industrial Bank of Korea of 136-1 site and the second floor of 136-1 site (hereinafter each of the instant real estate) on January 24, 1997, under No. 3065, Jan. 23, 1997; the maximum amount of the claims arising out of the creation contract on January 23, 1997; and the debtor, yellow-ju, and the Industrial Bank of Korea of Jung-gu.

B. However, upon delay in the performance of the above preservation obligation, the Industrial Bank of Korea filed an application for auction with the Seoul District Court on each of the instant real estate, which is a collateral, in accordance with the execution of the right to collateral security, and the auction procedure was initiated by the above auction court upon its voluntary decision to commence auction. The above auction court awarded the instant real estate in KRW 631,50,00. The auction court determined the amount of actual dividends by deducting the execution cost from the above bid price and the interest on the deposit amount of KRW 1,337,689, the sum totaling KRW 632,837,689, the above auction court determined the amount of actual dividends as KRW 625,640,552, Jun. 7, 199.

C. On the dividend date, the above auction court: (a) deemed the Industrial Bank of Korea as the first priority mortgagee; (b) deemed the Korea Technology Credit Guarantee Fund as the second priority mortgagee; and (c) 55,000,000 won as the second priority mortgagee; and (b) deemed the Defendant as the provisional attachment authority; and (c) prepared a distribution schedule to distribute the remaining KRW 125,640,552 as the third priority mortgagee; and (d) the Plaintiff appeared on the dividend date and raised an objection against the Defendant’s dividend amount.

2. The parties' assertion and judgment

A. The parties' assertion

The plaintiff completed the registration of seizure of each real estate of this case as a preservation procedure prior to the determination of national taxes on March 9, 199 with respect to KRW 1,053,626,710, which is the date of the auction procedure, prior to the date of the auction procedure. The above registration of seizure includes an expression of intent to claim the payment of dividends, and since the time of the establishment of the above gift tax is prior to the date of the auction, the plaintiff is in the position of priority over the defendant who is a general creditor, but the above auction court distributes all dividends to the defendant on the ground that there is no claim for the payment of dividends, so the above auction court shall correct the above distribution schedule as to this point

In regard to this, the defendant cannot be interpreted to have an inherent indication of the claim for dividend payment in the registration of attachment completed by the preservation procedure prior to the determination of national taxes, and even if there is an inherent indication of the claim for dividend payment, the tax payment period has already arrived at the time of the registration of attachment. The above gift tax has not yet been notified of the tax payment at the time of the above registration of attachment, and therefore, the plaintiff's claim of this case is groundless.

(b) Registration of seizure and details of distribution;

(1) Each of the instant real estate was originally owned by yellow mar, but the registration of transfer of ownership in the name of yellow mar was completed on May 4, 1995 due to the cancellation of the trust in the name of yellow mar on December 31, 1994.

(2) Meanwhile, the Defendant filed an application for provisional attachment against each of the instant immovables with the Daejeon District Court Branch of the Daejeon District Court by asserting that it had a claim of KRW 700 million, and the said court decided to provisionally seize each of the instant immovables on March 10, 1997. The provisional attachment registration was completed on March 15, 1997, based on the commission of the said court, with the Defendant’s respective of the instant immovables as the creditor, claim amount of KRW 700 million.

(3) Next, upon the Industrial Bank of Korea’s application for the above auction, the Seoul District Court made a decision on July 9, 1998 on the commencement of auction, and on July 11, 1998 the registration of the application for voluntary auction of each of the instant real estate was completed.

(4) On March 8, 199, the Plaintiff planned to make a payment notice of KRW 1,053,626,710 on the registration of the transfer of ownership on the ground of the termination of the above trust of the Yellow Shipping, and to pay the gift tax of KRW 1,053,626,710 to the Yellow Shipping. Since the auction was commenced on each of the instant real estate, the Plaintiff was subject to the procedure of seizing each of the instant real estate under the procedure of national tax preservation prior to the determination of national taxes. The registration of the seizure of each of the instant real estate was completed on March 9, 19

(5) In addition, on April 1, 1999, the Plaintiff determined that the gift tax to be borne by the Yellow Ship is KRW 1,053,626,710, and notified that the gift tax should be paid to the Yellow Ship by April 15, 1999.

(6) Meanwhile, in the above auction procedure, the date of the successful bid is March 10, 1999, and the plaintiff did not file an application for distribution based on the above gift tax until it reaches that time.

[Evidence] Won, the evidence presented by the defendant, and the whole purport of the pleading

(c) Markets:

(1) The grounds and meaning of the procedure for the preservation before national tax determination

Article 24 (2) of the National Tax Collection Act provides that "the director of the tax office may seize the taxpayer's property to the extent of the estimated amount of national taxes if he/she deems it impossible to collect the national taxes from the taxpayer after the determination of national taxes on the grounds falling under any of the subparagraphs of Article 14 (1)." Paragraph (4) of the same Article provides that "if the director of the tax office attaches the property pursuant to the provisions of paragraph (2), he/she shall notify in writing the taxpayer concerned of the attachment of the property." In cases falling under any of the subparagraphs of Article 14 (1) of the same Act, cases where Article 14 (1) of the same Act are subject to a disposition in arrears due to the default of national taxes or public charges, (2) is subject to a disposition in arrears, (3) is subject to compulsory execution, (5) is dissolved, (8) is deemed to have no address or residence in Korea without designating a tax payment administrator, and subparagraph 2 of Article 28-2 of the Enforcement Decree of the same Act provides that the notice of the tax items and tax amount related to the seizure year.

As such, the attachment of the taxpayer’s property is the preservation disposition to secure the collection of national taxes prior to the determination of national taxes. This is a system similar to the provisional attachment system under the Civil Procedure Act to preserve the future or determined claims. The head of a tax office, who received the notification of the attachment after the preservation, requests the release of the attachment, or fails to determine the national taxes to be collected according to the attachment until three months have passed from the date of the attachment.

(2) Whether the seizure before national tax determination includes the meaning of the claim for dividend

First, in the event that the registration of the preservation seizure prior to the date of the auction entry is completed, even if the state did not make an application for the dividend by the date of the auction entry, the court shall prepare a distribution schedule with the content of allocating the amount corresponding to the national tax claims preserved prior to the date of the auction entry, and deposit the dividend to the creditor even if there is no application for the distribution request by the creditor of the provisional seizure before the date of the application for the auction entry (Article 658 and Article 589(3) of the Civil Procedure Act), and ② in the event that the seizure is registered as a procedure for disposition of national tax in arrears with respect to the real estate at auction before the date of the application for the auction entry, it is interpreted that the head of the tax office has an inherent indication of the intention of the application for the payment of the delinquent national tax until the date of the auction entry, in view of the above fact that even if the taxpayer fails to make

However, if the state completed the registration of the preservation before the determination of national taxes after the registration of the auction, but failed to file an application for the dividend by the auction date, the seizure should be interpreted as excluded from the dividend in light of the following: (i) there are many cases where it is impossible to oppose the auction applicant; and (ii) the enforcement court cannot know the fact of seizure; (iii) the secured party who has acquired the right to preferential repayment of the auction real estate after the registration of the auction application or the creditor who executed the provisional seizure is excluded from the dividend unless he/she files an application for the dividend (see Article 605 of the Civil Procedure Act); (iii) even if the seizure is completed as a disposition of national tax in arrears after the registration of the auction after the registration of the auction, even if the state requests the payment by the auction date; and (iv) even if the above registration of the seizure has an express opinion of the intention to apply for the dividend, it is reasonable to interpret it as excluded from the dividend in view

(3) Determination

According to the above facts in this case, the plaintiff registered the seizure in accordance with the procedure for preserving the national tax prior to the completion of the registration of the above auction, and did not file an application for distribution with the court of auction until the date of the above auction. Thus, in this case where the plaintiff did not file an application for distribution with the court of auction until the date of the auction, and there is no circumstance to deem that the plaintiff did not have reached the court of auction until the date of the auction, the court of auction cannot know at all the above seizure. Thus, it is reasonable to exclude the plaintiff's national tax claim from the dividend.

In addition, the purport of limiting that the demand for dividend can only be made until the successful bid date in the compulsory auction procedure for real estate is to prevent excessive auction by settling the amount of the claim to be collected in the realization price before the realization, and to avoid delay and confusion in the procedure arising from the increase of the amount of the claim in the distribution procedure. This does not change the amount of the claim in the tax claim. Accordingly, the plaintiff's assertion cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed for reasons.

Judges Lee Sung-sung(Presiding Judge)