Whether seizure of real estate shares prior to registration of ownership transfer is lawful

Even if the balance is settled, there is no effect of change in real rights before the transfer of ownership of the real estate, so the attachment disposition of the real estate is legitimate.

Article 50 of the National Tax Collection Act

1. The plaintiff's claim is dismissed.

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

피고가 2005. 3. 25. 별지 목록 기재 부동산(이하 이 사건 부동산이라 한다) 중 ＯＯ주식회사(이하 소외회사라 한다) 명의의 2분의 1 지분에 대하여 한 압류처분을 취소한다.

1. Circumstances and facts of the disposition;

가. 원고는 2002. 4. 24 소외회사와 주식회사 ＯＯ산업개발로부터 이 사건 부동산을 분양받았다.

나. 소외회사와 주식회사 ＯＯ산업개발은 2004. 3. 15. 이 사건 부동산의 각 2분의 1 지분에 대하여 소유권보존등기를 마쳤다.

다. 원고는 2004. 3. 29. 이 사건 부동산에 대한 잔금을 완납한 다음 2004. 4. 20. ＯＯ시 ＯＯ구청장에게 이 사건 부동산에 대한 취득세와 등록세 및 지방교육세를 각 납부하였다.

라. 원고는 2004. 10. 27. ＯＯ구청장에게 이 사건 부동산에 대한 재산세(건축물)와 종합토지세를 각 납부하였다.

E. On March 25, 2005, the Defendant seized the shares of the non-party company out of the instant real estate in order to collect from the non-party company an occasional amount of wage and salary income tax of KRW 634,929,440 on February 2, 2005 (hereinafter the instant attachment disposition).

F. The Plaintiff completed the registration of ownership transfer of the instant real estate on May 19, 2005.

(No. 1-14 Evidence, No. 1-3 Evidence, and the purport of the whole pleadings)

2. The legality of this disposition

A. The plaintiff's assertion

(1) The assertion that the substance over form principle is violated

The Plaintiff is the actual owner of the instant real estate, and the Defendant also knew of these circumstances, but did not complete the registration of ownership transfer. As such, the instant attachment disposition was rendered.

Therefore, the Defendant’s instant attachment disposition is against a part of the instant real estate owned by the Plaintiff, and should be revoked due to an unlawful disposition against the principle of substantial taxation.

(2) Claim on cancellation of attachment

As alleged above, the Defendant’s disposition of this case’s seizure is null and void as it was conducted against the Plaintiff’s property, which is a third party, not the non-party company, which is the delinquent taxpayer.

(3) argument on violation of the principle of trust protection.

The Defendant notified the Plaintiff of the aggregate land tax, etc. on the premise that the instant real estate is owned by the Plaintiff, and had the Plaintiff pay the said tax, etc., but the instant seizure disposition was rendered by asserting that the instant real estate was owned by the Nonparty Company, etc., other than the Plaintiff.

Therefore, the Defendant’s attachment disposition of this case is unlawful against the principle of trust protection.

B. Determination

(1) As to the assertion of violation of the substance over form principle

The substance over form principle is only applicable to the taxation disposition when it is imposed, and it does not apply to the taxation disposition such as this case, and the plaintiff's assertion in this part is without merit, without further review.

(2) On the assertion on cancellation of attachment

In light of the provisions of Article 186 of the Civil Act that acquisition, loss, or transfer of real rights due to a juristic act on real estate takes effect by registration, unless the registration of transfer of ownership in the name of the plaintiff has been made by the time of the registration of seizure of this case, one-half of the real estate in this case is owned by the non-party company. There is no evidence to acknowledge that the plaintiff acquired ownership in this case.

Therefore, the Defendant’s seizure disposition of this case is legitimate, and the Plaintiff’s assertion on this part is also without merit.

(3) As to the assertion on violation of the principle of trust protection

Since notification of imposition of aggregate land tax, etc. to the plaintiff is not the defendant but the head of ○○○ Office, the plaintiff's assertion on this part under the premise that the defendant is the same corporate body as the head of ○○ office is without merit.

However, in light of the subject, method, subject, and purpose of taxation, etc., the fact that the head of ○○ head imposed the aggregate land tax, etc. on the Plaintiff cannot be said to have expressed the public opinion that the Defendant recognized the Plaintiff as a legitimate owner of the real estate in this case, or to have given any trust to the Plaintiff in this regard.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as ordered.