Seoul Central District Court 2014 Gohap53894 ( October 23, 2015)

The Plaintiff’s claim on the distribution of deposit money is merely a general loan and thus the national tax is first priority.

No evidence exists to acknowledge that the defect in the disposition imposing national taxes by the defendant is invalid due to significant and apparentness, and the plaintiff's claim is merely a loan to the general public and thus national taxes are priority.

2015Na2054408 Dividends

A

Korea

Seoul Central District Court Decision 2014Gahap53894 Decided July 23, 2015

March 22, 2016

April 12, 2016

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. The above court with respect to the distribution procedure of the Seoul Central District Court DD on October 2014

00. Of the dividend table prepared, the amount of the dividend to the defendant shall be reduced to △△ KRW 00, and the amount of the dividend to the plaintiff shall be corrected to KRW 0,000.

1.Basics

A. "P stock company (this refers to a multi-level distribution company that carries out food, agricultural and fishery products, Do and retail distribution business in accordance with the door-to-door Sales, etc. Act. The Plaintiff signed a contract for commodity purchase from around August 2013 to September 00, 2013, and paid KRW 00,000 as the price for the goods." However, on November 00, 2013, the Plaintiff withdrawn from a member of XX and came up accordingly to receive a refund claim amounting to KRW 00,000,000 from around March 0, 2014, the Plaintiff received a payment order from the Seoul Central District Court as Seoul Central District Court No. 2014 tea and KRW 00,000, and then became final and conclusive on March 0, 2014, the Plaintiff received a payment order from the Seoul Central District Court No. 300, Oct. 4, 2014.

C. Meanwhile, in accordance with Article 248(1) of the Civil Execution Act, the Seoul Central District Court deposited KRW 0,000,000 as the amount of the relevant claim against the creditors, including the Plaintiff, on May 2014, on the ground that the creditors, including the Plaintiff, were under pressure, seizure, and collection order against the said invested claim.

D. Accordingly, the Seoul Central District Court DD (hereinafter referred to as the “instant distribution procedure”) commenced, and the above court, on October 1, 2014, distributed the remainder of KRW 000,000,000 to the wage obligee E (appointed party) who received the claim attachment and collection order under the Seoul Central District Court 2014TTT No. 20000, and the second order to the wage obligee F (appointed party) who received the claim attachment and collection order under the Seoul Central District Court 2014TTA as the Seoul Central District Court 2000,000, and the third order to pay KRW 00,000 to the wage obligee F (appointed party) who was issued the claim attachment and collection order under the order of KRW 20,00,000, and the Plaintiff did not receive dividends from the Plaintiff.

E. The Plaintiff appeared on the aforementioned date of distribution, and raised an objection against the Defendant’s dividend amount, and filed a lawsuit of objection against the instant dividend payment.

[Ground of recognition] Unsatisfy, Gap evidence 1 and 2, and the purport of the whole pleading

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that for the following reasons, the plaintiff should pay 00,000,000 won to the plaintiff who has the right to refund as an investor in XX prior to the defendant.

1) The mutual aid transaction agreement between XX and Y is concluded to secure the investment risk of investors who invested in XX, and the amount of investment paid to the above union was provided as the Plaintiff’s investment amount. Therefore, it is unreasonable to preferentially distribute the instant deposit to the Defendant who is a national tax creditor rather than the Plaintiff.

2) It is unreasonable to distribute the instant deposit to the Defendant who is not entitled to receive dividends from the instant deposit money, since there is no validity in violation of the principle of substantial taxation, and the tax law, if the Defendant imposed the instant deposit on deeming the instant income as the income in XX.

B. Determination

1) Determination on the first argument

국세기본법 제35조 제1항에 의하면，국세 ・가산금 또는 체납처분비는 다른 공과 금이나 그 밖의 채권에 우선하여 징수하는바，원고의 XX에 대한 환급금 반환채 권이 국세기본법 제35조 제1항 각 호 등 국세에 우선하는 채권임을 인정할 아무런 증거가 없는 이상 원고는 일반채권자에 해당하므로, 이 사건 배당금을 원고보다 우선하여 피고의 국세채권에 배당한 것이 부당하다고 할 수 없고，XX과 YY사이의 공제거래업무계약이 XX 에 투자한 투자자들의 투자위험을 담보 하기 위하여 체결된 것이라거나 XX 이 위 조합에 출자한 출자금이 원고의 적립금 으로 마련된 것이라는 사정만으로 이와 달리 볼 수 없다. 이와 전제가 다른 원고의 주장은 받아들일 수 없다.

2) Judgment on the second argument

There is no evidence to acknowledge that the Defendant’s national tax claim is corporate tax imposed by deeming the instant deposit money as the income in XX, and there is no evidence to acknowledge that the defect in the disposition imposing the said national tax is invalid as it is significant and apparent, and thus, the Plaintiff’s above assertion cannot be accepted.

3. Conclusion

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