Where a lessee bears the amount equivalent to the value-added tax, the effect of the attachment of rent claim and management expense claim (disposition for arrears) is not included in the value-added tax amount.

Even if the plaintiff did not state any phrase including value-added tax in indicating seized bonds, it is reasonable to view that the attachment has an effect on the bonds for monthly rent and monthly management expenses under the instant lease agreement including value-added tax.

Article 41 (Procedures for Attachment of Claims)

2016Na5195 Collection Money

Korea

○○○ System Co., Ltd.

November 23, 2016

December 14, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 11,771,66 won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Until November 17, 2015, the Plaintiff owned approximately KRW 10.8 billion national tax claim against ○○.

B. On March 1, 2012, the Defendant entered into a lease agreement with ○○ and OO-O-O-O building of the Seoul OO-dong during the lease period from March 1, 2012 to February 28, 2014; deposit KRW 100 million; monthly rent KRW 210,000 (excluding value-added tax); monthly management fee of KRW 140,000 (excluding value-added tax); monthly management fee of KRW 140,000 (excluding value-added tax); and the rent and management fee of KRW 25,000 (hereinafter referred to as “instant lease agreement”); and thereafter, leased the said building to use it until November 23, 2015.

C. On July 15, 2013, the Plaintiff seized a monthly rent claim held against the Defendant by ○○ under the instant lease agreement, and thereafter, seized the monthly rent claim against the Defendant on July 28, 2015, and notified each of the Defendant of seizure around that time pursuant to the instant lease agreement, and then notified each of the Defendant of seizure. Around that time, the Plaintiff reached the Defendant.

D. The Defendant paid KRW 60,480,000 to the Plaintiff by December 10, 2015.

E. The monthly rent, including value-added tax, from July 1, 2013 to July 31, 2015 under the instant lease agreement, is KRW 57,750,00 (monthly rent 2,310,000 x 25 months), and the monthly rent and monthly management expenses, including value-added tax, from August 1, 2015 to November 23, 2015, include 14,501,666 won (monthly rent 2,310,000 + monthly management expenses + KRW 1,540,000), x (3 months + 23/30 days), and but forest below KRW 72,251,66 (5,750,750,06,000) x 166,065 won).

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 to 5, and evidence 7, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff’s value-added tax that ○○ has against the Defendant around July 2013 and around August 2015, 2015.

Therefore, the Defendant is obligated to pay to the Plaintiff monthly rent, including value added tax, from July 1, 2013 to July 31, 2015, and from August 1, 2015 to November 23, 2015, KRW 72,251,666, including monthly rent and monthly rent, and KRW 60,480,00, which do not fall short thereof, as the Defendant paid to the Plaintiff KRW 11,771,66 ( KRW 72,251,666 - 60,480,00) and delay damages.

B. Defendant’s assertion

1) ○○ had value-added tax claim on monthly rent and monthly management expenses separately from the claim on monthly rent and monthly management expenses against the Defendant, but the Plaintiff seized only the claim on monthly rent and monthly management expenses, which does not have the effect of seizure on the above value-added tax claim. Therefore, the Defendant is not obliged to pay to the Plaintiff the amount equivalent to value-added tax on monthly rent and monthly management expenses.

2) Since the Plaintiff is the final owner of value-added tax borne by ○○○○, the Defendant paid value-added tax on monthly rent and monthly management expenses of the instant lease agreement to ○○○○, and if ○○○ fully paid the amount to the Plaintiff as value-added tax, the object of seizure would be achieved by having the same result as the Defendant actually paid the amount of collection equivalent to the value-added tax to the Plaintiff. However, since ○○○ fully paid value-added tax from February 2, 2013 to January 2015 that received from the Defendant, the part corresponding to the value-added tax on monthly rent and monthly management expenses of the instant lease agreement corresponding to the above period was achieved and terminated, the Defendant is not obliged to pay the amount corresponding to this part to the Plaintiff as the collection amount.

3. Determination

(a) Whether the amount equivalent to value-added tax is included in the scope of seized claims;

The taxpayer of value-added tax under the instant lease agreement is not the Defendant.

○○○ and the Defendant is obliged to pay the value-added tax according to the instant lease agreement.

It is reasonable to view that the amount equivalent to the value-added tax is paid to ○○. It is substantially that the obligation to pay under an agreement identical to the monthly rent and monthly management expenses by adding the monthly rent and the monthly management expenses of the instant lease to the claim for monthly rent and monthly management expenses. Therefore, even if the Plaintiff did not state any phrase including the value-added tax in indicating the seized claim, it is reasonable to deem that the attachment extends to the claim for monthly rent and monthly management expenses under the instant lease agreement including the value-added tax.

(b) Whether the object of seizure has been achieved after the payment of value-added tax by ○○ was made

In light of the following circumstances revealed by the above evidence, ① the Defendant is obligated to pay the amount equivalent to the value-added tax in addition to the monthly rent bonds and the monthly management expenses under the instant lease agreement; ② the Defendant is obligated to pay the amount received from the Defendant as value-added tax; ② the Defendant is entitled to receive input tax deduction for the value-added tax paid to ○○ upon filing a value-added tax return; ③ the obligation to pay value-added tax and the Defendant’s obligation to pay the collection money to the Plaintiff are separate obligations. In full view of the following circumstances, ○○ paid value-added tax by paying value-added tax, and the Plaintiff’s seizure purpose is achieved; and the Plaintiff’s obligation to pay the collection money to the Defendant is not extinguished. Accordingly, the Defendant’s above assertion is without merit.

C. Sub-committee

Therefore, the defendant, including the value-added tax, after each seizure takes effect to the plaintiff.

The obligation to pay 11,771,666 won, excluding the amount of 60,480,000 won, which has already been paid from the aggregate of 72,251,66 won including rent and value added tax, and damages for delay calculated at the rate of 15% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from March 9, 2016 to the date of full payment, which is the day following the delivery of a copy of the complaint in this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, but only the defendant appealed against the judgment of the court of first instance, so the judgment of the court of first instance cannot be modified disadvantageously to the defendant, and it is so decided as per Disposition by the defendant's appeal.