Tax Tribunal 2010Gu127 (Law No. 18, 2010)

Disposition of seizure on the property of a third party who is not a taxpayer shall be null and void as it is impossible to legally realize the contents of such disposition.

When the trust relationship under the Trust Act is established, the trust property is reverted to the trustee, and it cannot be seized against the trust property under the name of the trustee due to the taxation claims against the truster. Therefore, the taxation claims against the trust property exceptionally allowed under the proviso of Article 21(1) of the Trust Act shall be deemed to mean only the taxation claims imposed on the trustee.

Article 24 of the National Tax Collection Act

2010Guhap4089 Nullification, etc. of attachment disposition

XX Trust Co., Ltd.

Head of the Gu Tax Office

May 25, 2011

July 6, 2011

1. We affirm that each attachment disposition taken by the Defendant on February 8, 2010 against the real estate listed in the [Attachment 1] List is invalid.

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

In the first and second orders, each attachment disposition made by the Defendant on February 8, 2010 on each of the real estates listed in the separate sheet shall be revoked.

1. Details of the disposition;

A. On January 20, 2006, the non-party XX consortium Co., Ltd. (hereinafter referred to as the "non-party company") entered into a real estate security deposit agreement with the plaintiff on 13 lots of land and its ground buildings including the real estate stated in the attached Table 1's list (hereinafter referred to as the "real estate of this case"), and completed the transfer of ownership, etc. on the same day for the plaintiff's future deposit.

B. The Defendant seized the instant real estate on February 8, 2010 (hereinafter “instant disposition”) on the ground that the Nonparty Company failed to pay the tax amount of KRW 75,860,330 in total, three cases of comprehensive real estate holding tax in 2008 and KRW 75,860,330 (hereinafter “the instant tax claim”).

C. The Plaintiff is dissatisfied with the request for a trial to the Tax Tribunal on March 24, 2010, but August 18, 2010.

was dismissed.

[Basis] Facts without dispute, Gap evidence 1 and 2, Gap evidence 3-1, 2, Gap evidence 4 and 5, Gap evidence 6-1 and 6-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion is as follows.

The Defendant seized the instant real estate based on the instant taxation claim. However, the instant real estate, which was trusted to the Plaintiff by the Nonparty Company, is not the non-party company but the Plaintiff, and thus, is unlawful. The instant disposition is unlawful. Since the defect is significant and apparent, the instant disposition is null and void as the defect is grave and obvious, and even if it is

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

(1) Article 24 of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 201) that provides for the requirements for seizure as a disposition on default is limited to a taxpayer’s property. As such, a disposition of seizure on a third party’s property, which is not a taxpayer, cannot be legally realized and thus null and void (see, e.g., Supreme Court Decision 2000Da68924, Feb. 23, 2001). If a truster transfers the ownership of real estate to a trustee and a trust relationship is established pursuant to the Trust Act between the parties, the trust property belongs to the trustee and cannot be deemed a truster’s property after the trust is entrusted. Accordingly, even if the truster of the trust property is a taxpayer, seizure on the trust property reverted to the trustee based on a tax claim against the truster, which is subject to the third party’s property, is not effective (see, e.g., Supreme Court Decision 96Da17424, Oct. 15, 1996).

As seen earlier, the instant real estate is owned by the Plaintiff as it is the property that the Nonparty Company entrusted to the Plaintiff, and the instant disposition is null and void since it is a seizure against a third party’s property that is not a delinquent taxpayer. In addition, since compulsory execution is prohibited against the trust property pursuant to the main sentence of Article 21(1) of the Trust Act, the instant disposition against the instant real estate, which is

(2) According to the proviso of Article 21(1) of the Trust Act, the Defendant asserts that the instant disposition is lawful since the instant tax claim constitutes “the right arising in the course of performing the trust business” and “the right arising in the course of performing the trust business.”

On the other hand, "the right that has arisen in the course of performing the trust affairs" under the proviso of Article 21 (1) of the Trust Act includes not only the right that has arisen from the management and disposal of the trust property (the right that is directly related to the trust property, such as the trustee's right to claim compensation under Article 42 of the Trust Act, the right to claim compensation under Article 43 of the Trust Act, etc.) but also the tax claim on the trust property, which is the right

However, as seen earlier, when a trust relationship under the Trust Act is established, prior property belongs to the trustee and thus it cannot be seized against the trust property under the name of the trustee due to a tax claim against the truster (see Supreme Court Decision 96Da17424, Oct. 15, 1996). Tax claims against the trust property exceptionally permitted under the proviso of Article 21(1) of the Trust Act shall be deemed to mean only "tax claims imposed on the trustee." Since the instant tax claim is imposed on the non-party company, the truster, not the trustee, and thus, it does not constitute "cases based on the rights arising in the course of performing the trust business" under the proviso of Article 21(1) of the Trust Act. Thus, the defendant's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's primary claim is justified and it is so decided as per Disposition.