the statutory due date of national tax shall be prior to the date of establishment of the right to collateral security.

The statutory due date of capital gains tax is earlier than the date of creation of the Plaintiff’s right to collateral security. Therefore, the statutory due date of the above additional charges is later than the date of creation of the Plaintiff’s right to collateral security. Therefore, the Plaintiff’s claim takes precedence over additional

National Tax Collection Act

Daejeon District Court-2017-Kadan-2547 (No. 14, 2017)

Dong-dong Saemaul Savings Depository

Korea

2017.08.17

2017.09.14

1. The defendant shall pay to the plaintiff 4,847,840 won with 5% interest per annum from February 15, 2017 to September 14, 2017, and 15% interest per annum from the next day to the day of complete payment. 2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 90% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant of the Gu office shall pay to the plaintiff 37,677,780 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.

1. Facts of recognition;

A. On August 10, 2010, the Plaintiff leased KRW 1.5 million to A, with the interest rate of KRW 7.5% per annum, 22% per annum, and the loan term of KRW 1.5 million as of August 10, 2013. On August 9, 2010, the Plaintiff concluded a mortgage contract with A as to the second-class No. 000,000 Incheon, Incheon, and the second-class No. 000 (hereinafter “the instant real property”) on the same day, and completed the registration of the establishment of a neighboring mortgage of KRW 137 million on the same day.

B. On November 30, 2012, the Plaintiff did not repay total amount of KRW 94,194,709 against the Plaintiff as of November 30, 2012, and applied for a voluntary auction on the instant real estate with the Incheon District Court Decision 000 other than 000,000. On November 26, 2012, KRW 37,677,780, and KRW 30,562,014 were distributed to the Plaintiff, respectively.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, and evidence 7

2. The assertion and judgment

A. The plaintiff's assertion

The date of registration of the establishment of the neighboring real estate of the Plaintiff was August 9, 2010, and the deadline for payment of capital gains tax on AAA’s 000 tax base on September 20, 2010, and the Plaintiff’s claim was priority over that of the 000 tax base, despite that the Plaintiff’s claim was priority over that of the 00 tax base, it constitutes unjust enrichment and thus, the Defendant is obligated to return the said money to the Plaintiff.

B. Determination

1) Relevant legal principles

According to Article 35 of the Framework Act on National Taxes, national taxes, additional dues, or disposition fees for arrears are collected in preference to other public imposts or other claims, but the claims secured by the right of lease on a deposit basis, pledge, or mortgage established before the statutory due date shall take precedence over national taxes (Article 1 (1) 3); where the Government determines, revises, or occasional assessment is made, the date on which the notice of tax payment is sent (Article 1 (1) 3); and in cases of additional dues, the date on which the due date for payment expires for the notice of the additional dues (Article 1 (2) 3), respectively, shall be the statutory due date (Article 35 (d) of the same Act)

2) Determination

However, according to the facts stated in the evidence Nos. 1 and 2, the tax payment notice for KRW 32,829,940, which is a national tax, was sent to AA on August 1, 2010 when there is no dispute between the parties concerned or when the tax payment notice for KRW 32,829,940, which is a national tax, was sent to AA on August 1, 2010. The payment notice for KRW 9,738,790, which is the capital gains tax and its additional dues, can be recognized as of September 20, 2010. Accordingly, according to the above relevant provisions, the statutory due date for KRW 32,829,940, which is the date on which the tax payment notice was sent, shall be August 1, 2010, the statutory due date for KRW 9,738,790, which is the date on which the payment notice was sent.

Therefore, the statutory due date of the transfer income tax of this case is earlier than August 9, 2010, which is the date of establishing the right to collateral security of this case by the plaintiff, and the statutory due date of the above additional dues is later than the date of establishing the right to collateral security of this case by the plaintiff, so the plaintiff's claim shall take precedence over the additional claim. However, as seen above, since the amount exceeding 37,677,780 won of the transfer income tax of this case exceeds 32,829,940 won in 00, 4,847,840 won (=amount 37,677,780 won - Transfer income tax of 32,829,940 won - Amount of dividend 32,829,940 won) is deemed to have accrued from the day following the date of establishing the right to collateral security of this case to the plaintiff, it is reasonable for the defendant to pay 15% interest of the same amount to the plaintiff and to pay damages equivalent to the above amount to the plaintiff by 215% of the record of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.