Incheon District Court 2014Gahap5155 ( October 17, 2014)

If a preliminary return of capital gains tax was notified, the statutory date is the preliminary return date.

There was no omission or error in the preliminary return itself, but there was no omission or error in the details of the preliminary return, and the notification of a lump sum payment without payment on several proposals within the same taxable period after the end of the taxable period, and the transfer loss incurred from the transfer of other real estate is deducted from the transfer income amount, and thereby the tax base and tax amount are changed, the date

Seoul High Court 2014Na204435 Demurrering to Distribution

AA Cooperatives

Korea

October 17, 2014

April 30, 2015

June 2, 2015

1.The judgment of the first instance shall be modified as follows:

A. From among the dividend table prepared by the Incheon District Court on April 25, 2014, the amount of dividend 286,506,100 won against the Defendant shall be 217,141,510 won, and the amount of dividend 200,095,010 won against the Plaintiff shall be corrected to 269,459,60 won.

B. The plaintiff's remaining claims are dismissed.

2. 3/4 out of the total costs of the lawsuit shall be borne by the Plaintiff, and the Marin Defendant.

The judgment of the first instance is revoked. Of the dividend table prepared by the ○○ District Court on April 25, 2014, the amount of 286,506,100 won against the defendant shall be deleted, and 200,095,010 won shall be corrected to 486,601,110 won against the plaintiff, among the dividend table prepared by the ○○ District Court on April 25, 2014.

1. Basic facts

With respect to this part, the corresponding part of the reasons for the judgment of the first instance shall be cited pursuant to the main sentence of Article 420 of the Civil Procedure

2. The plaintiff's assertion

A. The Defendant, while notifying the instant unpaid payment, deducted transfer loss from the transfer income amount reported by Kim ○○, and changed the transfer income tax base and tax amount. This constitutes a case where taxing authorities corrected the transfer income tax base and tax amount due to omissions or errors in the preliminary return, which constitutes a correction disposition for the instant preliminary return, not a simple collection disposition.

Therefore, pursuant to the proviso of Article 35(1)3 (b) of the Framework Act on National Taxes, the statutory due date of the transfer income tax of this case is January 4, 2012, which is the date of sending the notice of non-payment of this case. Thus, on September 6, 201, which is the date of establishment of the instant right to collateral security, the Plaintiff’s secured claim of the instant right to collateral security takes precedence over the Defendant’s claim of transfer income tax of this case. Accordingly, the instant dividend table should be revised as stated in the purport of the claim.

B. Even if the Defendant’s notice of non-payment was not a corrective disposition, the statutory due date for the additional tax and additional dues out of the amount of dividends against the Defendant is applied mutatis mutandis under Article 35(1)3(b) and (c) of the Framework Act on National Taxes; the due date for the delivery of a tax notice in the case of additional dues; and the due date for the payment of additional dues in the case of additional dues, i.e., when the statutory due date for the payment notified in the notice of payment was passed after September 6, 201, which is the date for the establishment of the instant right to collateral security; thus, the claim secured by the instant right to collateral security should take precedence over the amount equivalent to the above additional tax and additional dues out of the Defendant’s amount of dividends. Accordingly, the amount corresponding

3. Determination

(a) Legal deadline of the capital gains tax of this case (excluding additional tax, etc.);

1) According to Article 35(1) of the Framework Act on National Taxes, national taxes, etc. are collected in preference to other claims, but if the establishment registration of a mortgage has been completed prior to the statutory due date of the national tax, national taxes shall not take precedence over claims secured by the mortgage, and the "legal due date of national taxes" shall be the national taxes for which the liability to pay taxes is determined by the return

With respect to the reported amount of value-added tax (including value-added tax) the date of filing the report (Article 22(1)3 (a) of the Framework Act on National Taxes and Article 10-2 of the Enforcement Decree of the Framework Act on National Taxes), in cases where the Government determines, revises, or occasional assessment of the tax base and tax amount, the date of sending the notice of tax payment (Article 22(1)3 (b) of the Act on National Taxes) shall be the date of sending the notice of tax payment. Meanwhile, pursuant to Article 22(1) of the Framework Act on National Taxes and Article 10-2 of the Enforcement Decree of the Framework Act on National Taxes, capital

According to the above relevant laws and the above facts, barring special circumstances, the statutory due date of the principal capital gains tax of this case shall be July 29, 2010, for which Kim○-○ scheduled return of capital gains tax was made pursuant to Article 35(1)3 (a) of the Framework Act on National Taxes.

B. Whether the notice of non-payment of this case constitutes a corrective disposition

In the Defendant’s notice of non-payment of this case, the sum of transfer losses in the same taxable period deducted the sum of 2,159,69,690 won from the transfer income amount that occurred in the same taxable period, and due to such change, the transfer income tax base and the amount of tax recorded in the preliminary return of this case are changed. As such, whether the notice of non-payment of this case constitutes “where the government makes a decision on, revises or occasional assessment” under Article 35(1)3 (b

Article 105 of the Income Tax Act provides that a person who transfers real estate shall file a return on the tax base of transfer income ("preliminary return") with the head of the competent tax office within two months from the end of the month in which the transfer date belongs, and Article 114 (2) of the same Act provides that if there are omissions or errors in the details reported by the person who filed the preliminary return, the head of competent tax office, etc. shall correct and correct the tax base of transfer income and the amount of tax, and Article 102 (2) of the same Act provides that in calculating the amount of transfer income, if there is any assets which

According to the above provisions, if there are omissions or errors in the details of the taxpayer's preliminary return, if the tax authority changed the transfer income tax base and tax amount pursuant to Article 114 (2) of the Income Tax Act and made a disposition of correction, it shall be deemed that the tax base and tax amount under Article 114 (1) 3 (b) of the Framework Act on National Taxes constitute "where the government determines, revises, or occasionally imposed a tax base and tax amount." However, as in this case, there was no omission or error in the content of the preliminary return in this case, and the Defendant issued a notice of comprehensive payment without delay on several preliminary returns within the same taxable period after the end of the taxable period, and only when the transfer loss incurred from the transfer of other real estate is deducted from the transfer income tax amount of the transfer income tax of this case, it shall not be deemed that the preliminary return of this case constitutes a case where a corrective disposition under Article 114 (2) of the Income Tax Act is made, and therefore, the date

Therefore, the statutory due date of the principal capital gains tax of this case cannot be deemed to have been changed according to the notice of non-payment of this case, and it shall be deemed to have been July 29, 2010, which is the scheduled date of preliminary return. Therefore, the principal capital gains tax of this case shall take precedence over the secured claim of

(c) Legal date of the additional dues or additional dues;

1) In order to ensure the faithful performance of obligations under tax-related Acts, additional taxes are collected by adding the amount of tax calculated under the relevant tax-related Acts (principal tax) to the amount of tax to be collected. Even if additional taxes are imposed and collected under the name of principal tax, the nature of the principal tax differs in essence from that of the principal tax. Thus, the statutory due date of additional taxes must be determined when the tax authority imposed additional taxes separately from that of the principal tax. Thus, the statutory due date of additional taxes shall be deemed the date of sending the notice of tax payment pursuant to Article 35(1)3 (b) of the Framework Act on National Taxes. If a tax return is made within the due date of tax return, the tax authority’s act for determining liability would not be involved, and the statutory due date of the principal tax is determined when the taxpayer fails to pay the amount of tax, but the statutory due date of additional taxes is determined by adding the amount that is collected in addition to the notified amount of national tax under the National Tax Collection Act at the time when the national tax was not paid by the due date, the statutory due date of tax payment can be determined by adding 20.

2) Comprehensively taking account of the evidence and the purport of the entire pleadings as seen earlier, Kim○○ filed the instant preliminary return on July 29, 2010 on the ○○ Tax Office, but did not pay it. The Defendant, on January 4, 2012, sent the notice of unpaid payment to Kim○○ on January 31, 2012, including the additional tax paid in bad faith on the transfer income tax of this case. Kim○ failed to pay it even after the above payment deadline, and eventually, the additional tax of KRW 19,640,440 and additional tax of KRW 49,724,150 (hereinafter “additional tax and additional tax”) was incurred until the auction of this case. Meanwhile, according to the above facts, the date of establishment of the instant collective security was recognized as the date of establishment of the instant collective security on September 6, 201, which was 400,000 won prior to the statutory due date of delivery or additional tax payment of the said additional tax, 640 days prior to 96 days prior to the above statutory due date of payment.

D. Sub-determination

According to the above-mentioned priority relationship, each distribution should be made in the order of the principal tax of the capital gains tax of this case, the secured debt of this case, the additional tax of this case, and the additional tax of this case. Among the 286,506,100 won distributed to the defendant on the date of distribution of the auction procedure of this case, the total amount of additional tax and additional tax of 69,364,590 won excluding the principal tax of this case 217,141,510 won shall be distributed to the

Therefore, the dividend amount of KRW 286,50,100 against the Defendant in the instant distribution schedule is KRW 217,141,510 (=286,50,100 - KRW 69,364,590), and the dividend amount of KRW 200,095,010 against the Plaintiff should be corrected (=269,45,095,010 + + KRW 69,364,590).

4. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. The judgment of the court of first instance is unfair in some different conclusions, and the plaintiff's appeal is partially accepted and the judgment of the court of first instance is modified as shown in the Disposition.