The trustee's duty to pay the collection money for the disposal trust contract for real estate disposal;

It is without merit that a trustee of a real estate disposal contract has expressly or implicitly agreed to pay a national tax imposed on the truster in lieu of the fact that the trustee disposes of the trusted real estate and received the purchase price to the defendant.

2014 Gohap20181 Collection

Korea

Aaa

October 28, 2014

December 4, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant’s KRW 2,090,094,550 for the Plaintiff and the day following the service date of a duplicate of the instant complaint

It shall pay 20% interest per annum from the day of full payment to the day of full payment.

1. Basic facts

A. Tax claims against the Plaintiff Company BB

BB (hereinafter referred to as “B”) is the principal tax and additional charges for nine cases, including Class A earned income tax of 875,719,390 won, the due date for payment of December 31, 2012 for the Plaintiff.

including, but not limited to, 4,062,125,510 won in arrears (hereinafter referred to as "the taxation claim of this case").

The details of tax claims shall be as follows:

B. Conclusion of a real estate disposal trust agreement between the defendant and BB

1) On July 24, 2009, the Defendant entered into a real estate disposal trust agreement (hereinafter “instant real estate disposal trust agreement”) with the content that the Defendant is entrusted with the disposal (sale) of the instant trust real estate complex (hereinafter “instant trust real estate”) at 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

2) On the same day, the Defendant completed the registration of ownership transfer on the ground of the instant real estate disposal trust contract with respect to the instant trusted real estate on the same day, and the contract of the instant real estate disposal trust contract was registered as the original trust register, which is part of the said registration of ownership transfer.

(c) The Plaintiff's refund and appropriation for public auction of value-added taxes imposed on BB;

1) In accordance with Article 51 of the Framework Act on National Taxes, the value-added tax imposed on the value-added tax of KRW 1,407,180,780, total amount of the national tax refund from January 2007 to January 2009, as of the year when the refund was determined upon a request by BB’s respective correction requests, the Plaintiff appropriated for the refund (hereinafter “the refund reserve of this case”) as follows.

2) On November 29, 2013, 200, 435,00 shares of DD shares owned by BB were put up for a public auction on the grounds of delinquency in national tax by BB, and on the same day, the Plaintiff (Dong Daegu Tax Office) received delivery of KRW 935,048,430 on the same day.

The Plaintiff appropriated 682,913,770 won among the 935,048,430 won received as above for the public auction in accordance with Article 81(2) of the National Tax Collection Act for the income tax in arrears by BB as follows (hereinafter “the sum of the received amounts for the public auction”)

D. The plaintiff's peremptory notice of seizure and collection of claims

1) On February 24, 2014, pursuant to Article 41(3) of the National Tax Collection Act, the Plaintiff (the head of the Dong Daegu District Tax Office) notified the Defendant that the Plaintiff’s instant tax claim against BB is subject to enforcement claim, and that the Plaintiff’s total amount of KRW 2,090,094,550 (=a total of KRW 1,407,180,780 + a total of KRW 1,407,180,780 + a total of KRW 682,913,770) of the refund reserve + an unjust enrichment claim amounting to KRW 682,913,270 (hereinafter “instant attachment disposition”) reached the Defendant on February 26, 2014.

2) On February 27, 2014, the Plaintiff (the head of the Dong Daegu District Tax Office) urged the Defendant to pay u3002,090,094,550 won to the Plaintiff based on the instant attachment disposition against BB by the Defendant. [Grounds for recognition] The Plaintiff (the head of the Dong Daegu District Tax Office) did not dispute, Gap 1 through 11, and Eul 1, and the purport of the entire pleadings.

2. The plaintiff's assertion

(a) Claim for return of unjust enrichment by BB against the Defendant;

1) At the time of the instant real estate disposal trust agreement, the Defendant and BB expressly agreed to pay taxes and public charges, such as value-added tax on the instant trusted property, to the Defendant.

2) Even if the Defendant and BB did not explicitly state the above arrangements at the time of the instant real estate disposal trust agreement, the Defendant concluded the instant real estate disposal trust agreement: (a) the above basic facts C from July 27, 2009 to April 25, 2014, including the sum of 2,090,094, and value-added taxes appropriated for public sale as described in paragraph (c) and 147 national taxes imposed on BB, including the sum of 2,090,094,550, and the value-added taxes appropriated for public sale; (b) the Defendant disposed of the instant trusted real estate in accordance with the instant real estate disposal trust agreement and received each purchase price including value-added taxes from the buyer, and actually managed it; (c) in consideration of the above circumstances, the Defendant and BB agreed to assume the Defendant’s tax and public charges on the instant real estate at the time of the instant real estate disposal trust agreement or after the said agreement.

3) However, the Plaintiff refunded and appropriated for public sale any national tax, such as value-added tax, imposed on BB any part of the proceeds from public sale (682,913,770 won) of the national tax refund (total 1,407,180,780 won) and the stocks held by BB, which should be returned to BB as described in paragraph (c) of the above basic fact.

Therefore, the Defendant is obligated to pay BB taxes, such as value-added taxes, imposed on BB on the instant trusted property after the instant real estate disposal trust agreement in accordance with the aforementioned explicit or implied agreement. As such, the Defendant, based on the Plaintiff’s aforementioned refund and appropriation for public sale, obtained unjust enrichment equivalent to KRW 2,090,094,550 in the sum of the instant refund reserve and the instant public sale reserve, and thus, is obligated to return it to B.

B. Defendant’s duty to pay the collection amount to Plaintiff

The Defendant is obligated to pay the Plaintiff, an execution creditor who subrogated BB pursuant to Article 41(2) of the National Tax Collection Act, the sum of the refund reserve of this case and the public auction reserve of this case, 2,090,094,550 won, and damages for delay.

3. Determination

A. According to each of the above basic facts, Gap evidence 13, Eul evidence 4, the following facts are recognized:

① After the conclusion of the instant real estate disposal trust contract, KRW 23,66,674,010, which was imposed by BB from July 27, 2009 to April 25, 2014, was paid in total of KRW 23,09,666,674,010 (the foregoing payment details include KRW 2,090,094,550, including value-added tax imposed on BB as described in the foregoing basic facts C.).

② The Defendant disposed of the instant trusted real estate in accordance with the instant real estate disposal trust agreement, and accordingly received each of the sale proceeds, including value-added tax, from the buyers, from the Defendant and EE joint account (Account Number 000-00-00-0000) or GGG deposit account (00-0000), respectively.

However, the above facts alone are insufficient to recognize the Plaintiff’s assertion that the Defendant and BB agreed explicitly or implicitly to pay national taxes, such as value-added tax, imposed on the instant trusted property at or after the time of the instant real estate disposal trust agreement, and there is no other evidence to acknowledge otherwise.

B. On the other hand, according to the above basic facts, Gap evidence No. 13, Eul evidence No. 5, and the purport of the whole pleadings, the following facts and circumstances are acknowledged.

① At the time of the instant real estate disposal trust agreement, the Defendant and BB expressly agreed that “BB, the truster, bears the taxes and public charges on the instant trusted property at the time of the instant real estate disposal trust agreement, and if the Defendant, the trustee, pays on behalf of the trustee, the trustee, shall pay the principal paid by BB to the Defendant in addition to the amount of interest paid by BB and the damages for delay based on the rate agreed upon (a) the agreement of the instant real estate disposal trust agreement

In the original book of trust, which is part of the transfer registration of ownership under the name of the defendant on July 24, 2009 concerning trusted real estate,

was registered)

② Following the conclusion of the instant real estate disposal trust agreement, there is no ground to deem that the Defendant paid national taxes, such as value-added tax, on the instant trusted real estate, to the competent tax authority (Dong Daegu Tax Office) on behalf of BB.

③ On August 31, 2009, BB, the Defendant, and EEE concluded a monetary claim trust agreement with the Korea Development Bank with respect to each purchaser’s claim for the purchase price (including the claim for the return of deposits to the bank which deposits the purchase price, if the purchaser received the purchase price from the purchaser) with respect to each purchaser’s claim for the purchase price (including the claim for the return of deposits to the bank which deposits the purchase price from the purchaser). Accordingly, HH bank substantially managed the sale price of the trust real estate of this case.

C. Therefore, the Plaintiff’s assertion that the Defendant and BB agreed explicitly or implicitly to pay taxes and public charges on the instant trusted at or after the time of the instant real estate disposal trust agreement or thereafter, is without merit without any need to further examine.

4. Conclusion

Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.