Daejeon District Court-2014-Ga group-27668 ( November 26, 2014)

Whether it is legitimate to determine the priority order between each tax claim according to the priority order of seizure prior to seizure.

Tax claim and security interest company except for such tax

The priority order of an objection shall be determined by the date on which the legal date and the date of establishment of the security right shall be the same.

After distributing the sale price in the order of priority, the priority order between each tax claim shall be determined according to the principle of priority of seizure under Article 36 (1) of the Framework Act on National Taxes.

Article 35 (1) 3 of the Framework Act on National Taxes

2014Na108070 Demurrer against distribution

○○ Lighting

○ Head of tax office

National Rotations

December 2, 2016

on 17, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. In the case of ○○ court 2012 other real estate rental auction, this decision shall be revoked.

Of the dividend table drawn up by the court, the amount of dividend against the defendant shall be corrected to ○○○, and the amount of dividend against the plaintiff to ○○○○○○○, respectively (the plaintiff was corrected to ○○○, in the first instance).

1. Basic facts

(a) In the case of ○○ Housing Association (hereinafter referred to as the “instant association”) the instant association: ○ apartment with the size of 12 stories above the ground of 2 stories above the ground of 322-13305 square meters above the ○○-dong 322-1305 square meters;

The apartment building was constructed.

B. In order to secure the ○○○○○’s claim against the instant association, June 2008.

20. The maximum amount of debt regarding each of the real estates listed in the separate sheet (hereinafter referred to as “each of the real estates of this case”).

Upon completion of the registration of establishment of the right to collateral security (hereinafter referred to as the "right to collateral security of this case"), 00 won

On January 3, 2014, the High Court completed the registration of transfer of the right to collateral security on February 26, 2014.

C. As to each of the instant real property, the Defendant received on April 1, 2009 from the ○○ District Court ○○○ registry office.

The registration of seizure was completed by ○○, and ○○ City on April 9, 2009 by the same registry office.

The registration of seizure has been completed.

D. In the instant auction procedure, ○○ court ○○○○○ (hereinafter referred to as “instant auction procedure”) started. At the instant auction procedure, the Defendant filed a claim against KRW ○○○○○ and KRW ○○○○○ on December 1, 2008, the statutory date of which was July 27, 2008, for the issuance of the said real estate, on July 2008, when the statutory date was January 23, 2009, the statutory date was January 23, 2008 (hereinafter referred to as “instant auction procedure”). The Defendant filed a claim against KRW ○○ and KRW ○○○ on June 1, 2008, the statutory date of which was May 1, 2009. The Defendant filed a claim against KRW 30, the statutory date of which was June 16, 2008 (hereinafter referred to as “○○”).

E. In the instant auction procedure, on July 2, 2014, the auction court prepared a distribution schedule with respect to the amount of 00 won to be actually distributed on the date of distribution as follows.

The amount of dividends on the grounds of the order of dividend among creditors;

1 ○○-si 6,88,250 1 6,888,250 1 1,000

2 ○○-si 23,793,810 23,793,810

3 ○○ Head of Tax Affairs 91,269,960 2 Attacheds 91,269,960

4 An assignee ○○ Stock Company’s Trustee ○○

11,043,056,364 2-mortgaged land (land) 60,276,326

5 The transferee, ○○, 500,000 3 Creditors 124,029,734

F. 91,269,960 out of 115,063,770 won to be distributed at ○○○○, as stated in the above distribution schedule

○○○ Tax Office under the Defendant’s jurisdiction, which was first seized than ○○ City, shall be distributed to the remainder 23,793,8

10(=115,063,770 Won -91,269,960) was distributed to ○○○.

G. The plaintiff appeared on the date of the above distribution and raised an objection against the whole amount of each dividend.

A lawsuit was filed.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 6 (including branch numbers, if any; hereinafter the same shall apply), Eul evidence 1 to 3, the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

1) The Plaintiff is a person who acquired the right to collateral security established on June 20, 2008 prior to the statutory deadline for the Defendant’s taxation claims, and thus, was subject to the auction procedure for each real estate of this case.

The amount of dividends against the defendant must be corrected to be distributed to the plaintiff.

2) Of the delinquent taxes for which the Defendant requested delivery, the statutory due date is 5,301,250 won (5,301,250 won) from May 1, 2009.

Since corporate tax of 4,809,610, the statutory due date of December 1, 2009, the statutory due date of 4,809,610, which is the date of seizure of the defendant after April 1, 2009, the statutory due date of 5,000, the defendant cannot receive a dividend based on

(3) on the ground that the statutory due date is prior to the acquisition tax of all commercial buildings registered for subdivision.

If dividends are paid in preference to intentional security rights, it is an abuse of tax rights, so only the tax incurred by each real estate of this case shall be distributed by applying the statutory date prior to the real right of the plaintiff.

4) On May 25, 2012, ○○-si, 2008, 2008, ○○-si, 2008, 218, 5 commercial buildings (132, 204, 208, 210, and 218) in the apartment of the instant case, had already been conducted at the auction procedure of 2008,

157,561,079 won was received as dividends. Thus, in the auction procedure of this case, the request for delivery at the beginning ○○ City was made.

amounting to KRW 81,004,531,00 which deducts the above KRW 157,561,079 from gold 238,565,610,000 at ○○

under the premise that 115,063,770 won is distributed at ○○○, even though it must have been distributed to the Defendant.

C. At ○○ court 2008, 19928, a dividend was received in excess of the ○ market price.

34,059,239 won must be corrected to have been distributed to the Plaintiff during the instant auction procedure.

5) The legal date of acquisition tax (real estate) as asserted by the defendant shall be recognized as June 16, 2008.

Since there is no evidence, the amount of dividends against the defendant should be corrected to be distributed to the plaintiff.

B. Determination

1) Article 35(1)3 of the Framework Act on National Taxes and Article 99(1)3 of the Framework Act on Local Taxes are publicly announced.

Since the legislative purpose of securing the safety of transaction and the public interest request in order to secure the realization of tax claims in relation to the security right accompanying such security right is to properly harmonize, the taxation claims should not be infringed on the essential contents of the security right, and the person who has acquired the security right can anticipate the occurrence of the tax claims which take precedence over the security right on the property in the future in the future, and the so-called seizure priority principle adopted by Article 36(1) of the Framework Act on National Taxes and Article 101(1) of the Framework Act on Local Taxes intends to give priority to the collection right holder who has paid a tax obligor's financial status over other tax creditors and has the right of priority in tax collection, so the seizure priority principle can only be applied to determining the priority between the tax claims and the security right accompanying the public notice (see, e.g., Supreme Court Decision 2005Du050, Nov. 24, 2005).

First of all, a tax claim that became due before the date of establishment of the security right on the real estate subject to the public notice and a statutory due date after the date of establishment of the security right.

In the event of all seizures based on tax claims, taxation claims and secured security claims except for such taxes;

The priority order of an objection shall be determined by the date on which the legal date and the date of establishment of the security right shall be the same.

any seizure prescribed in Article 36(1) of the Framework Act on National Taxes after the sale price has been distributed in order;

It is necessary to determine the priority of each taxation claim according to the precautionary principle.

Therefore, in the auction procedure of this case, ○○○ City’s claim 115,063,770 won prior to the legal date of the Plaintiff’s right to collateral security prior to the legal date of the auction procedure of this case was distributed in the second order at ○○○○○, and then the seizure was preferentially distributed to the Defendant prior to the seizure prior to the seizure prior to ○○○○. This part of the Plaintiff’s claim is lawful

2) Article 47(2) of the National Tax Collection Act provides that "a seizure of real estate, etc. under Article 45 of the same Act shall be made:

Article 82 of the Local Tax Act provides that "An amount in arrears with the national taxes of which statutory due date comes before the ownership of the attached property is transferred shall also be effective (Article 82 of the Local Tax Act shall also apply mutatis mutandis to the collection of local taxes). If a seizure is registered at one time, the seizure shall become effective as a matter of course without obtaining new registration of seizure against the same person (see, e.g., Supreme Court Decision 2005Da11848, Dec. 14, 2007).

With respect to a taxation claim that is after April 1, 2009, the statutory deadline for the plaintiff is the date of seizure by the defendant.

Inasmuch as the Defendants asserted that the instant real estate cannot be distributed to High Court, the Defendants completed the registration of seizure before the commencement of the auction, and thereafter filed a claim for the delivery of the amount of delinquent taxes in the auction procedure conducted thereafter, as seen earlier, the seizure of the amount of delinquent taxes is deemed to have an effect on KRW 5,301,250, and KRW 4,809,610, which was claimed by the Defendant for delivery. Therefore, all dividends made to the Defendant pursuant to the instant distribution schedule are lawful. The Plaintiff’s assertion on this part is without merit.

3) The plaintiff is legally entitled to acquisition tax on the combination of all commercial buildings in the apartment of this case, the registration of division of which was made.

If it is recognized that the date is earlier than the real security right of the plaintiff on the ground that the date is earlier, the abuse of tax rights.

Since it is argued that ○○ Si's inquiry results and pleadings on February 2, 2015.

According to the purport of the whole, acquisition tax return is recognized as having been filed by paying the acquisition value invested in the total floor area of new construction as the total acquisition value, and it is recognized that the amount of delinquent taxes by the building registered separately has not been divided. There is no evidence to acknowledge that the Plaintiff’s filing of a voluntary report requests for delivery of acquisition tax at ○○ Market and received dividends in the auction procedure of this case as abuse of tax authority.

4) The plaintiff asserted that ○○ City was distributed excessively during the instant auction procedure.

As such, each fact-finding determination made on May 18, 2015 about ○○ City, written evidence No. 6, and each fact-finding determination made on May 18, 2015

According to the purport of the division and oral argument, it is found that ○○ City’s total amount of KRW 157,561,079, which was paid out of the ○○ court’s 2008 other auction procedure on May 25, 2012, was the aggregate of KRW 123,501,840 out of the tax claims against the instant association and KRW 34,059,239 out of the tax claims against the title construction corporation, and there is no evidence to deem that ○○ City participated in the above distribution procedure and received an excessive dividend over the amount legally paid to the Plaintiff. Therefore, the Plaintiff’s assertion on this part is without merit.

5) The Plaintiff’s statutory date of acquisition tax (real estate) claim is deemed as June 16, 2008.

Therefore, according to Article 99(1)3 of the Framework Act on Local Taxes, in the case of acquisition tax, for which the duty to pay taxes is determined by the tax base and the return of tax amount, the statutory due date for which the report is made. According to the results of fact-finding conducted on May 18, 2015 at ○○ City, each of the fact-finding conducted on June 16, 2008 and June 17, 2008, and all of the pleadings, it is reasonable to view the above date as the statutory due date for acquisition tax, and therefore, there is no other evidence to prove the facts alleged by the Plaintiff. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

If so, the plaintiff's claim shall be dismissed without merit, and this conclusion shall be the same.

Since the judgment of the first instance is justifiable, it is so decided as per Disposition by dismissing the plaintiff's appeal.