[1] Legislative intent of Article 35 (1) 3 of the Framework Act on National Taxes and the scope of "national tax imposed on the property" under the proviso of the same Article (the corresponding tax)

[2] In a case where the registration of transfer of ownership was completed under the name of the mortgagee on the registry at the time of the establishment of the right to collateral security, whether the gift tax imposed on the property constitutes the "national tax imposed on the property" under the proviso of Article 35 (1) 3 of the Framework Act on National Taxes, namely, the so-called "national tax" (affirmative)

[1] The legislative intent of Article 35(1)3 of the Framework Act on National Taxes is to properly harmonize the judicial request to guarantee transaction safety and the public interest request to secure the realization of tax claims with respect to the secured real rights accompanying public disclosure. Thus, even if the pertinent tax is priority over the claims secured by the secured real rights, it shall not infringe on the essential contents of the secured real rights, and therefore, the "national tax imposed on the property" under the proviso of Article 35(1)3 of the same Act means a national tax imposed by the person who acquires the secured real rights can be predicted to a considerable extent that it will be imposed on the property in the future, and only means a national tax imposed by recognizing the capacity to pay for the property in question.

[2] The gift tax imposed on the real estate on the ground of the donation made before the establishment of the right to collateral security is imposed on the real estate itself, and since the registration of ownership transfer has already been completed in the name of the person who created the right to collateral security on the registry at the time of the establishment of the right to collateral security, it is reasonable to view that the right to collateral security may be expected to be imposed on the property as the cause of taxation in the future. Accordingly, the above gift tax constitutes the so-called "national tax imposed on the property" under the proviso of Article 35 (1) 3 of the Framework Act on National Taxes

[1] Article 35(1)3 of the Framework Act on National Taxes / [2] Article 35(1)3 of the Framework Act on National Taxes, Article 18(1)3 of the Enforcement Decree of the Framework Act on National Taxes

[1] Supreme Court en banc Decision 96Da23184 delivered on March 18, 199 (Gong1999Sang, 1546 delivered on September 26, 1989) (Gong199Sang, 715 delivered on March 18, 199) / [2] Supreme Court Decision 99Da6135 delivered on August 20, 199 (Gong199Ha, 1871)

Korea

Korean Cosmetics Co., Ltd.

Daejeon District Court Decision 99Na11395 delivered on June 15, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

According to the records, the real estate of this case was originally owned by Nonparty 1, but it was donated to Nonparty 2 on June 27, 1996 and completed the registration of ownership transfer for reasons of donation under the name of Nonparty 2 on the same day. Nonparty 2 completed the registration of ownership transfer for the real estate of this case on December 12, 1996; Nonparty 3 and Defendant Company; the debtor completed the registration of ownership transfer for the real estate of this case; on December 12, 1996, the head of the Yananan District Tax Office, under the Plaintiff’s control of the Plaintiff, notified Nonparty 2 of the payment period of KRW 4,573,712 as gift tax on December 1, 197; on December 31, 1997, KRW 4,573,712 as gift tax on Nonparty 2; on February 31, 1998, the Defendant Company applied for a voluntary auction of KRW 200,000,314,2714,2000.

Article 35(1)3 of the Framework Act on National Taxes intends to properly harmonize the judicial request to guarantee transaction safety and the public interest request to secure the realization of tax claims with respect to the secured real rights accompanying public disclosure. Thus, even if the pertinent tax is priority over the claims secured by the secured real rights, it shall not infringe on the essential contents of the secured real rights. Therefore, the "national tax imposed on the property" under the proviso of Article 35(1)3 of the same Act means a national tax imposed solely by recognizing the taxable capacity on the property owned by the person who acquired the secured real rights can be sufficiently predicted to impose on the future property (see Supreme Court en banc Decision 96Da23184 delivered on March 18, 199).

According to the above facts, the gift tax of this case was imposed on the real estate itself, and since the registration of ownership transfer was completed in the name of Nonparty 2, the mortgagee of the right to collateral security at the time of the establishment of the right to collateral security of this case due to the gift on the registry, it is reasonable to view that the defendant, the mortgagee of the right to collateral security, can expect that the gift tax of this case will be imposed on the property as the cause of taxation in the future, and therefore, the gift tax of this case constitutes the "national tax imposed on the property" under the proviso of Article 35 (1) 3 of the Framework Act on National Taxes

Therefore, while the reasoning of the judgment of the court below is somewhat different, the conclusion that recognized the gift tax of this case as the so-called "relevant tax" and accepted the plaintiff's claim is just, and further, the argument that the part that cited the gift tax as one of the "national taxes imposed on the property" under Article 18 (1) of the Enforcement Decree of the Framework Act on National

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)