Seoul Western District Court 2012Kadan24463 ( October 11, 2012)

It can be collected in preference to other taxes against the proceeds from the sale of apartment.

Although an apartment subject to attachment is offered as security for tax payment, it cannot be said that the provision of security for tax payment goes against the validity of the attachment, and national taxes can be collected in preference to other taxes, regardless of the Plaintiff’s attachment on the apartment.

2012Na31714 Demurrer against distribution

Seoul Metropolitan Government

Korea

Seoul Western District Court Decision 2012Da24463 Decided October 11, 2012

March 22, 2013

April 12, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

With respect to the case of the application for the auction of real estate rent in Seoul Western District Court 201Mota, 17935, the amount of dividends to the defendant among the dividend table prepared by the above court on May 21, 2012 shall be deleted, and it shall be corrected to distribute the amount of KRW 000 to the plaintiff.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

The reasoning of this Court is the same as that of the judgment of the court of first instance, and this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Relevant statutes;

It is as shown in the attached Form.

3. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

(A) Since the instant right to collateral was established and registered after the instant seizure, and in the distribution order, the Plaintiff, who was the subject of the instant seizure, shall take precedence over the Defendant, who was the subject of the instant

(B) The national taxes that may be collected preferentially under Article 37 of the Framework Act on National Taxes shall be limited to the national taxes secured by the taxpayer’s property as security for tax payment, and those secured by the property of a third party other than the taxpayer as security for tax payment, such as the instant mortgage, shall not constitute national taxes that may be collected preferentially under the said Article.

(C) Therefore, the above distribution schedule must be revised to delete the dividend amount of KRW 000 to the defendant in the instant distribution schedule, and to distribute the same amount to the plaintiff.

(2) The defendant's assertion

(A) Article 37 of the Framework Act on National Taxes provides, notwithstanding Article 36 of the same Act, that the secured national taxes shall be collected in preference to other national taxes, local taxes, etc. among the proceeds from the sale of the secured goods.

(B) Accordingly, the instant distribution schedule, which was distributed in preference to the Defendant, who is the person liable for tax payment of the instant apartment compared to the Plaintiff, the person liable for tax payment of the instant apartment, is justifiable.

B. Determination

(1) The attachment by a disposition on default has a legal or factual effect to prohibit any disposition with respect to the delinquent property, and any unfavorable disposition against the execution creditor, such as reimbursement of debts, assignment of claims, and establishment of rights, may not be asserted against the execution creditor.

(2) However, the current tax law, such as the Framework Act on National Taxes, the National Tax Collection Act, and the Framework Act on Local Taxes, does not have any provision on mutual heat between taxes, and all claims, including national taxes and local taxes, are, in principle, the same in the fixed order. However, as an exception to this, the Framework Act on National Taxes and the Framework Act on Local Taxes stipulate the provisions on the priority of secured taxation (Article 36 of the Framework Act on National Taxes, Article 101 of the Framework Act on Local Taxes), and the provisions on the priority of secured taxation (Article 37 of the Framework Act on National Taxes, Article 102 of the Framework Act on Local Taxes, and Article 102 of the Framework Act on Local Taxes, hereinafter referred to as "the provisions on priority of secured taxation"), and the legislative purpose of the attachment priority is to give priority to the collection right holder of taxes, which are more than the other tax creditors, (see Supreme Court Decision 2001Da83777, Jul. 11, 2003).

"(3) Therefore, the above (2) provisions concerning the order of tax collection among fin tax, and the structure and legislative purport of the above (2), and the effect of seizure of the property of fin tax in arrears under the above (1) does not extend to the prohibition of the same delinquent taxpayer from providing the security for tax payment for other tax payers. Therefore, even if there is a prior seizure based on other taxes on the security for tax payment, the tax payer with the right for tax payment can first set the tax in good faith from the proceeds of the sale of the tax security for tax payment in accordance with the tax priority provisions on the security for tax payment. In addition, there is no reason to limit the case where the security for tax payment is owned by the taxpayer, and even if the third party provided the security for tax payment for taxpayer, the right for tax payment should be deemed to have been granted to the taxpayer, and in such case, the taxpayer is not the taxpayer with the security for tax payment, and the taxpayer is not the taxpayer, and the taxpayer, and the taxpayer, and it cannot be claimed that the attachment under Article 35 (1)9) of the Framework Act is against the defendant.

Notwithstanding the attachment of the plaintiff's apartment of this case as a collateral tax, it is judged that the sale price of the apartment of this case can be collected in preference to other taxes.

(5) Accordingly, the instant distribution schedule, in which the Defendant was distributed in 86,485, and 184 won in preference to the Plaintiff, is justifiable in accordance with the above priority order.

3. Conclusion

If so, the plaintiff's claim should be dismissed due to the lack of reason, and the judgment of the court of first instance, which different conclusions, is improper. Therefore, the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed. It is so decided as per Disposition.