early 2010 Heavy3229 ( December 28, 2010)

Attachment for a third party's property that is not a taxpayer shall be null and void only because the defect is serious and apparent.

Since the trust property is absolutely transferred to the trustee, and the property right in the internal relationship with the truster is not reserved against the truster, the seizure against the third party's property constitutes the invalidity automatically.

Article 24 of the National Tax Collection Act

2011Guhap483 Revocation of Disposition rejecting an application to cancel the attachment, etc.

AA Real Estate Trust, Inc.

Head of the High Tax Office

July 12, 2011

August 30, 2011

1. We affirm that the attachment disposition taken by the Defendant on May 17, 2010 against the real estate listed in the separate sheet is invalid.

2. The costs of the lawsuit are assessed against the defendant.

Main Affairs

The same shall apply to the order.

Preliminary Claim

The defendant's rejection disposition against the plaintiff on July 26, 2010 shall be revoked.

1. Details of the disposition;

A. On March 28, 2006, the Plaintiff entered into a real estate security trust agreement (hereinafter referred to as “the instant preferential contract”) with the BBBB corporation (hereinafter referred to as “BBB”) on March 28, 2006, and with respect to the Goyang-gu OOdong 000-0 groundCC (hereinafter referred to as “instant building”) 26 units including the real estate listed in attached Table 1, the Plaintiff entered into a real estate security trust agreement (hereinafter referred to as “the instant preferential contract”) with three companies, including DD mutual savings banks, as the first beneficiary for the instant building, and completed the registration of ownership transfer in the name of the Plaintiff on the 29th of the same month.

B. On May 17, 2010, the Defendant, on the ground that BBB was delinquent in paying KRW 346,470,420, including corporate tax for the year 2006, which was due to the construction and sale of the instant building, the Defendant seized the instant real estate, the ownership transfer of which was completed under the name of the Plaintiff (hereinafter “instant disposition”).

C. On July 7, 2010, the Plaintiff filed an application with the Defendant for the cancellation of the above attachment disposition, but the Defendant rejected it on the 26th of the same month (hereinafter “instant refusal disposition”).

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

In the first place, the instant disposition is valid since it constitutes an unlawful and obvious case as a result of the attachment disposition of a third party’s property, not a taxpayer. In the second place, even if the instant disposition is not null and void, the instant disposition of refusal is unlawful on the ground as above.

(b) relevant statutes;

Attached Form 2. The entry is as shown in Annex 2.

C. Determination

1) On the other hand, Article 24 of the National Tax Collection Act, which provides for the requirements for seizure as a disposition on default, limits the property of a taxpayer. As such, a disposition of seizure against a property of a person who is neither a taxpayer nor a third party, which is not a taxpayer, shall be null and void as it is impossible to legally realize the content of such disposition (see, e.g., Supreme Court Decision 2000Da68924, Feb. 23, 2001). Meanwhile, a trust under the Trust Act, pursuant to a special fiduciary relationship between a truster and a trustee, transfers a specific property right to a trustee, or disposes of such property right for a specific person’s interest, or has the trustee manage and dispose of such property for a specific purpose, and where a property right is transferred to a trustee under a trust agreement, such trust property shall be absolutely transferred to the trustee, and the disposition of the property right shall not be subject to compulsory execution against the truster, such as a trust property under the name of the truster or a trust property under the Trust Act, which is an auction (see, etc.).

2) The Defendant asserts that the corporate tax, etc. in arrears by BBB, which served as the basis of the instant disposition, is related to the profits, etc. accruing from the construction and sale of the instant building, and thus, the instant disposition is lawful. The instant disposition is lawful. Although the rights arising from the trustee’s ordinary disposal of the trust business, such as the management and disposal of prepaid property, are not the rights arising from the trustee’s ordinary disposal of the trust business, it shall include the taxes, public charges, etc. on the trust property. However, the said taxes, public charges, etc. should be deemed to mean taxes, etc. imposed on the trustee, not the truster, in light of Article 21(1) of the Trust Act. Meanwhile, the instant trust contract has been concluded for the purpose of securing the trustee’s debt to the financial institutions by BBBB, and thus, it cannot be deemed as the rights arising from the execution of the trust business in accordance with the instant trust contract. The trustee’s corporate tax and value-added tax, etc. cannot be deemed as the rights arising from the Plaintiff’s ordinary disposal of the Plaintiff.

3. Conclusion

Therefore, the plaintiff's primary claim of this case is reasonable, and it is decided as per Disposition by admitting it.