Korea Asset Management Corporation (Law Firm Cheong, Attorney Don-ju, Counsel for defendant-appellant)

Gyeong-si (Law Firm, Attorney Choi Jae-il, Counsel for the plaintiff-appellant)

June 18, 2010

Suwon District Court Decision 2009Da67630 Decided January 27, 2010

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. Of the distribution schedule prepared by the said court on August 13, 2009 with respect to the Suwon District Court's auction of real estate (No. 51603), the distribution amount of KRW 43,898,270 against the defendant shall be deleted, and the amount of KRW 3,041,351,831 shall be corrected to be distributed to the plaintiff.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the pleadings in the descriptions of Gap evidence 1, Gap evidence 2-1, Gap evidence 2-2, Gap evidence 3, and 4.

A. On December 12, 2002, with respect to each real estate listed in the separate sheet (hereinafter “the instant real estate”). On October 7, 2002, the ownership transfer registration was made on the same day in the name of Daol Real Estate Trust Co., Ltd. (hereinafter “Daol Real Estate Trust”) and on the same day in the name of Daol Real Estate Trust (hereinafter “Daol Real Estate Trust”) on December 16, 2005.

B. As to the instant real estate, the registration of the establishment of a mortgage under the name of Seoul Mutual Savings Bank, a joint debtor, established as the joint debtor, was completed on December 12, 2002 with respect to the instant real estate. On January 21, 2009, the additional registration of the said right to collateral security was completed on the ground of transfer of contract on December 23, 2008 under the name of the Plaintiff.

C. Upon the application of Seoul Mutual Savings Bank, the Defendant filed a claim for the issuance of the pertinent property tax (building) and additional dues on July 10, 2006, the statutory date of July 10, 2006, which was the property tax (building) and additional dues 21,373,910, and property tax (land) and additional dues 2,781,210, the statutory date of September 10, 2006, which were the property tax (building) and additional dues 16,640,60, and the property tax (building) and additional dues 16,640,60, and the property tax (land) and additional dues 3,102,50,50, and the total amount of property tax (land) and additional dues 3,502, 43,589, and 270, as the pertinent tax amount, on July 10, 2007,

D. When the instant real estate was sold and the price was paid, the auction court shall pay KRW 3,041,351,831 to the Defendant, who is the person entitled to issuance of the pertinent tax, the amount of KRW 43,898,270,000, which shall be calculated by deducting KRW 19,821,870 from the sales price of KRW 3,056,10,000 and its interest of KRW 5,073,70, and the amount of KRW 3,041,351,831, which shall be actually distributed to the Defendant, who is the person entitled to issuance of the pertinent tax, in the second order. The court set up a distribution schedule to distribute the remaining amount of KRW 2

2. Determination

A. The plaintiff asserts that the taxpayer of the property tax of this case is the truster of the real estate of this case, which is the trust property, and that the real estate of this case was reverted to the Jeju Real Estate Trust, which is the trustee due to the establishment of trust relationship through the transfer of ownership, and even though the defendant is the tax payer, he may not request the delivery of the real estate of this case, which is not the property of the taxpayer, and may not be distributed by requesting the delivery of the real estate of this case. In addition, since the statutory deadline after the establishment of the plaintiff's right to collateral security,

B. A person liable to pay the property tax on the property of land, buildings, etc. is a person who actually owns the property as of the tax base date (Article 183(1) of the Local Tax Act), but in the case of the trust property registered under the name of the trustee under the Trust Act, the truster is liable to pay the property tax, and the trustee is deemed a tax manager under Article 37 of the same Act (Article 183(2)5 of the Local Tax Act).

On the other hand, local taxes and their additional charges imposed on the property itself take precedence over those secured by mortgage, etc. established prior to the statutory due date (Article 31(2)3 of the Local Tax Act). Although compulsory execution or auction is not possible on trust property, compulsory execution or auction is exceptionally allowed on the rights arising from the performance of trust affairs (Article 21(1) of the Trust Act).

In addition, it is reasonable to view that the so-called tax claim, which is the local tax and the additional charge imposed on the trust property itself, is the right that belongs to the trust property itself and the property tax corresponds to the pertinent tax (see Supreme Court Decision 2000Da58088 delivered on February 23, 2001).

Therefore, even if a taxpayer is delinquent in paying the property tax, it is reasonable to interpret that even if the property subject to taxation is a trust property, if the taxpayer seizures or participates in the attachment of the property subject to taxation, which is the trust property, or the realization procedure is already underway for the trust property subject to taxation for the collection thereof (see Supreme Court Decision 96Da21058 delivered on July 12, 1996, which is not the pertinent tax). On the other hand, even if the property subject to taxation is a trust property, if the taxpayer who owns the pertinent property subject to taxation intends to evade taxes by using the Trust Act, if it is interpreted that the disposition on default is impossible, the taxpayer’s right to collect taxes would be unreasonable.

In this case, according to the above legal principles, it is just to preferentially distribute local taxes on the fixed tower, the trust property of which the defendant requested to deliver, from the proceeds of the sale of the real estate of this case, as the relevant taxes. The plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-sung (Presiding Judge)