A mortgage claim that is preferentially protected in relation to national taxes shall be based on the relationship with a mortgagee at the time of the establishment of the mortgage concerned with the mortgagee.

If, in the absence of any tax arrears to be collected prior to the mortgage at the time of the death of the establisher of the mortgaged real estate, the national tax imposed on the inheritor may not be collected prior to the date of the establishment of the mortgage or prior to the date of the establishment of the mortgage.

Article 35 of the Framework Act on National Taxes

2016 grouped 113095 Demurrer

00 Banks

Korea

November 9, 2016

November 23, 2016

1. Of the dividend table prepared by the said court on August 25, 2016 with respect to the auction of real estate at Changwon District Court 2015, the dividend amount of KRW 145,985,480 against the defendant ( KRW 00,000,000,000,000) shall be KRW 0,000,000 ( KRW 00,000,000,000,000,000), among the dividend table prepared by the said court on August 25, 2016, the dividend amount of KRW 145,985,480 against the defendant shall be corrected to KRW 00,00,000.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic factual basis of the instant case

① On September 24, 2014, the Plaintiff entered into a contract to establish a mortgage right of KRW 00,000-00,000 on the aggregate of KRW 00 and KRW 000,000,000 for 00 and KRW 200,000 for 00,000 for 00 and KRW 200 for 00 for 00,000 for 20,000 for 00,000 for 20,000 for 00,000 for 20,000 for 0,000 won for 20,000 for 0,000 won for 0,000 for 20,000 for 60,000 for 0,000 for 20,000 for 0,000 for 20,000 for 0,000 for 6,000 for 20,000.

2. Judgment on the plaintiff's claim

A. On the ground of the instant claim, the court of auction held that applying Article 35(1)3 of the Framework Act on National Taxes to the effect that the Defendant’s tax claim against the amount in arrears takes precedence over the Plaintiff’s claim against the Defendant, and that it is unlawful to preferentially distribute the amount in arrears to the Defendant, on the ground that the statutory due date for the amount in arrears exceeds the date when the Plaintiff’s establishment registration was completed

B. Therefore, Article 35 (1) 3 of the Framework Act on National Taxes shall be collected in preference to other public charges or other claims: Provided, That the same shall not apply to the claims secured by the right to lease on a deposit basis, the right to pledge, or the right to pledge, where national taxes or additional dues (excluding national taxes and additional dues imposed on the property) are collected from the proceeds of sale of the property for which the fact that the establishment of the right to lease on a deposit basis, the right to lease on a deposit basis, the right to pledge, or the right to pledge is registered before any of the following dates is verified, as prescribed by Presidential Decree. In the case of a national tax for which the duty to pay is finalized [including corporate taxes for interim prepayment, the value-added tax paid by preliminary return and the income tax (limited to cases where a return is filed pursuant to Article 105 of the Income Tax Act)] in accordance with

However, a mortgage-backed claim that is preferentially protected in relation to the national tax pursuant to the above laws and regulations is interpreted to be the purport that it is based on the taxpayer's tax liability, on the basis of the relationship with the mortgagee at the time of the establishment of the mortgage. The mortgage-backed claim that is excluded from the preferential collection of such national tax is interpreted to be the purport that it is based on the mortgagee's tax liability. Even if the mortgagee transferred the mortgaged property to a third party and the assignee was in default of national tax or local tax, the eligibility for protection shall not be lost under the current law without any special provision. Thus, if the mortgaged real estate is transferred from the mortgage-backed owner to a third party and the said lender was not in arrears with any tax to be collected prior to the mortgage, the national tax or local tax imposed on the third party who is the transferee shall not be collected prior to the statutory due date or after the said lease (see Supreme Court Decision 2004Da51153, Mar. 10, 2005). Such a legal principle should be deemed to be the same in case where the

Therefore, if the establisher of the mortgaged real estate did not have any tax in preference to the mortgage at the time of the death, the national tax imposed on the inheritor may not be collected prior to the date of the establishment of the mortgage or prior to the date of the establishment of the mortgage. And the separation of inherited property claimed by the Defendant does not affect this legal doctrine.

C. In the instant case, the fact that, at the time of death of 00, a person who was the mortgagee of the right to collateral security on the said land and building, no dispute exists between the parties, or that there was no Korean tax in arrears at the time of death by the entry of Gap evidence. Thus, even if 00 of his heir did not pay value-added tax and comprehensive income tax, and the statutory date of each tax is prior to the date of establishment of the Plaintiff’s own right, the Defendant cannot exercise a priority over the Plaintiff’s national tax claim against the above 00 of the land and building which is the object of collateral security. Accordingly, the Plaintiff’s claim against the auction court for the correction is justified ( even if the total amount of dividend against the Defendant is distributed to the Plaintiff, it is short of the Plaintiff’s claim amount secured by the said right

3. Conclusion

As above, the plaintiff's claim of this case is justified and it is so decided as per Disposition.