Whether a right which can be enforced is a right which takes place in the course of the performance of trust affairs

The trust contract is a collateral trust which was concluded for the purpose of securing a loan obligation to a loan financial institution of the non-party company, and thus, the value-added tax related to the sale of real estate and the amount of withholding tax on the labor income of the non-party company's workers cannot be deemed as

The contents of the decision shall be the same as attached.

○○ Trust, Inc.

Head of Ansan Tax Office

1. Disposition by the Defendant on October 27, 2009 on the seizure of the real estate stated in the attached Table 1 that it substituted the Plaintiff.

subsection (b) of this section.

2. The costs of lawsuit shall be borne by the defendant.

Main purport of the claim

It is identical to paragraph (1) of this Article.

First Preliminary Claim

The disposition rejecting the release of attachment made by the Defendant against the Plaintiff on October 30, 2009 shall be revoked.

2 Preliminary claims

On October 27, 2009, the Defendant confirmed that a seizure disposition on real estate listed in the attached list against the Plaintiff is null and void.

1. Circumstances of the disposition;

가. 원고는 토지 등의 신탁 등을 목적으로 설립된 회사로 2006. 7. 28. 주식회사 ☐☐산업개발(이하 '소외회사')과 사이에, 소외회사의 중소기업은행에 대한 ☆☆파크 신축자금의 채무이행을 위해 ○○시 ○○구 ○○동 1123 지상의 별지 1 목록 기재 부동산(이하 '이 사건 각 부동산')에 관한 다음과 같은 내용의 부동산 담보형 신탁계약을 체결하고, 같은 날 이 사건 각 부동산에 관하여 원고 명의의 소유권이전등기를 마쳤다.

Article 1(Purpose of Trust) The purpose of this Trust is to preserve and manage trust real estate in order to guarantee the management of ownership of trust real estate and the performance of liabilities or responsibilities owed by the truster, and to realize and settle the trust real estate in the event of default.

Article 3 (Beneficiarys)

신탁원본의 우선 수익자 : 중소기업은행(2008. 9. 18. 2순위 우선수익자로 ♤♤건설 주식회사 추가) 제4조(신탁의 원본) 신탁의 원본은 신탁부동산 또는 그 물상대위로 취득한 재산, 수탁자가 임대인으로서 취득, 보관하는 임대차보증금, 신탁부동산의 처분대금 및 처분절차와 관련하여 발생되는 위약금 등, 신탁재산에 속하는 금전의 운용에 의하여 발생한 이익, 기타 이에 준하는 것으로 한다.

B. After the new construction of the instant real estate and the sale of the real estate was carried out, the supplier was issued a tax invoice for the non-party company and the supplied person as the purchaser.

C. However, as indicated in the table below, the non-party company did not pay the withholding tax for the amount of income change notified after disposing of the amount of income as a bonus to the plaintiff's representative director in 2007 or 2009, which was charged to the sales price of each real estate of this case.

D. After that, as a result, the delinquent tax claim, such as value-added tax, etc. (hereinafter “instant tax claim”) resulted in KRW 1,210,395,080, the Defendant seized each of the instant real estate, etc. based on the above claim on October 27, 2009 (hereinafter “instant disposition”).

E. On December 22, 2009 and February 5, 2010, the Plaintiff filed an application with the Defendant for the rescission of the instant disposition, but the Defendant did not answer any question.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 through 4 (each number No. 1 to 4), the purport of the whole pleadings

2. Recommendation of the parties;

A. The plaintiff's principal

(1) First, the Defendant’s disposition of this case, which seized each of the instant real estate, based on the instant taxation claim against Nonparty Company, constitutes a disposition of seizure of a third party’s property, which is not a taxpayer, and thus, should be revoked.

However, the instant disposition that seized each of the instant real estate in an amount equivalent to KRW 13,284,600,000 based on the instant taxation claim, which is merely KRW 13,284,60,000, is unlawful as an excessive seizure.

(2) Although the instant attachment disposition is imposed on a third party’s property, which is not a taxpayer, and thus constitutes grounds for cancellation of attachment under Article 53 of the National Tax Collection Act, the Defendant’s failure to give any notice regarding the instant request for cancellation of attachment is unlawful as it is the same as the disposition rejecting the request for cancellation of attachment, and thus, should be revoked.

(3) Preliminaryly, the disposition of this case’s real estate attached by the Defendant based on the instant taxation claim against the non-party company, which is a trust property, constitutes a disposition of seizure of a third party’s property, which is not a taxpayer, and thus its defect is significant and apparent.

B. Defendant’s principal

The taxation claim of this case is imposed on the basis of a tax invoice issued by the non-party company as the supplier after selling each of the real estate of this case, which is the trust property under the trust contract of this case, and received the sale price from the buyer of this case, and is naturally generated from the sale of each of the real estate of this case. Thus, the disposition of this case is lawful since it constitutes a right arising from the performance

3. Whether the disposition is proper.

(a) Statutes;

Attached Form 2 is the same as the entry of the relevant statutes.

B. Judgment on the main claim

(1) Whether the taxpayer of the value-added tax in the instant case is a discount

(A) Generally, value-added tax is generally imposed on a person who supplies goods or services independently in business, i.e., a truster is liable to pay the value-added tax. On the other hand, trust under the Trust Act provides that the truster shall manage and dispose of the property rights for the purpose of trust by transferring or disposing of a specific property right, and where the trustee supplies or becomes supplied with the goods or services in managing and disposing of the trust property, the trustee himself/herself becomes a contracting party and the trustee shall manage the trust business. However, the profits and expenses arising from the management and disposal of the trust property ultimately accrue to the truster, and the trust under the Trust Act is ultimately returned to the truster's account. Thus, trust under the Trust Act is also designated by another person's calculation as "the truster" under Article 6 (5) of the Value-Added Tax Act, and thus, the truster and the person liable to pay value-added tax is, in principle, the truster and the person liable to pay value-added tax, who are the beneficiary of the trust property, in addition to so-called other trust, the truster and the beneficiary are 20.

(B) However, the value-added tax is a tax imposed on the supply of goods or services and the import of goods. In the case of the instant trust agreement that belongs to a real estate security trust, the real estate, which is the goods, has not been transferred formally or substantially to the preferential beneficiary; the amount equivalent to the preferential interest, out of the realized amount arising from the disposal of trust property, belongs to the preferential beneficiary formally; however, it is difficult to deem that the preferential beneficiary merely receives his/her claim from the truster, and furthermore, it is difficult to deem that the truster would receive the price for the supply of goods. On the other hand, in the case of the truster, the pertinent amount equivalent to the preferential interest is exempted from the beneficiary’s obligation or responsibility, and thus, the taxpayer of value-added tax due to the sale of each real estate is the non-party company, the truster.

(2) Whether the withholding agent of the income tax in the instant case is a person

Where the tax authority’s disposition of income and notice of change in the amount of income accrued therefrom are given, the tax withholding agent is deemed to have paid the relevant amount to the person to whom the income recorded in the notice was given on the date of receipt of the notice of change in the amount of income, and at the same time the tax withholding liability is established, and the tax withholding agent is a corporation that is obligated to pay the withholding tax according to the details of the disposition of income recorded in the notice of change in the amount of income to the head of the competent tax office by the tenth day of the following month (Supreme Court Decision 2002Du1878, Apr. 20, 2006)

(3) The owner of each real property of this case

(A) A trust under the Trust Act refers to the legal relationship in which a truster transfers or disposes of a specific property right to a trustee based on a special fiduciary relationship between a truster and a trustee, and a trustee manages or disposes of such property right for the benefit of a specific person or for a specific purpose. In cases where a property right is transferred under a trust agreement to a trustee pursuant to a trust agreement, such trust property is absolutely transferred to the trustee, and the property right is not reserved against the truster in an internal relationship with the truster (see Supreme Court Decision 2007Da54276, Mar. 13, 2008).

(B) On the other hand, Article 19 of the Trust Act provides that the property acquired by a trustee due to the management, disposal, destruction, damage, or any other reason of trust property belongs to the trust property. Whether the trustee is the owner of the right to the trust property under the Trust Act and whether the business operator and the taxpayer of value-added tax under the Value-Added Tax Act are in charge of trust business under the Trust Act are different. In full view of the above legal principles of trust and the contents of the trust contract in this case, and the trust law, each of the instant real estate belongs to the trust property under the trust contract in this case and thus,

(4) Whether the Defendant can enforce compulsory enforcement of each of the instant real estates, which are trust property, based on the instant taxation claim

(A) According to Article 24(1) of the National Tax Collection Act, which provides for the requirements for seizure as a disposition on default, a disposition of seizure against a third party’s property, which is not a taxpayer, is limited to the taxpayer’s property. Thus, the disposition of seizure against a third party’s property, which is not a taxpayer, cannot be legally realized (see Supreme Court Decision 96Da17424, Oct. 15, 1996). If a truster transfers the ownership of real property to a trustee and a trust relationship is established between the parties pursuant to the Trust Act, unlike a simple title trust, the trust property is attributed to the trustee and it cannot be deemed a truster’s property even after the trust is still deemed a truster’s property. The main sentence of Article 21(1) of the Trust Act provides that a trust property cannot be subject to compulsory execution or auction against the trustee’s own property and the truster’s property, thereby allowing compulsory execution or

As seen earlier, the instant disposition is a seizure of each of the instant real estate, which is the trust property in the name of the Plaintiff, the trustee, based on the instant taxation claim against the non-party company, after the trust under the Trust Act was made pursuant to the instant trust contract. Thus, barring any special circumstance, it is a seizure for a third party’s property, which is not a taxpayer, and its defect is significant and apparent.

(B) Whether the instant taxation claim constitutes “the right arising before the trust” or “the right arising in the course of performing the trust business” under the proviso of Article 21(1) of the Trust Act

Article 21 (1) of the Trust Act provides that compulsory execution or auction of the trust property shall not be permitted for the trust property only in the case of "right arising from the cause before the trust" or "right arising from the process of performing the trust business". Here, the term "right arising from the cause before the trust" means the case where the truster has already a right to enforce compulsory execution or auction of the trust property before the trust property, such as the case where the truster has established a mortgage or an executory bond, and the right arising from the trust business has already occurred before the trust property. In general, the term "right arising from the process of trust business" means the right arising from the trust business of the trustee who performs the trust business such as the management or disposal of the trust property. However, in light of the tax or public charges related to the trust property, the right arising from the trust property or the liability for warranty arising from the defect of the trust property sold as a trust property, or the right arising from the trust business of the other party to the trust property to legally implement the purpose of the trust property.

(5) Sub-decisions

Therefore, inasmuch as the instant taxation claim against the defendant's non-party company cannot be deemed as falling under the "right arising from a cause prior to the trust" or "right arising from a cause prior to the trust" pursuant to the proviso of Article 21 (1) of the Trust Act, the instant disposition, which seized each of the instant real estate, which is the trust property under the name of the plaintiff, based on the instant taxation claim against the non-party company, after the trust under the Trust Act was made pursuant to the trust under the trust law of this case, is a seizure against the non-party company, which is the truster, which is the trustee, due to a serious and obvious defect. However, as long as the plaintiff seeks only the cancellation of the instant disposition as its primary claim, the instant disposition should be revoked by unlawful

3. Conclusion

Therefore, the plaintiff's primary claim is reasonable, and it is so decided as per Disposition without any judgment.