Claims for additional charges incurred due to delinquency after bankruptcy is declared shall not constitute estate claims.

Since a bankruptcy was declared after the date the liability to pay corporate tax was established, corporate tax claims constitute estate claims; however, it is reasonable to view the additional dues as a kind of incidental tax added in the sense of interest on arrears in national tax, which is not equivalent to the scope of estate claims.

2012 Gohap 59737 Confirmation of Non-existence of Estate Claim

trustee in bankruptcy in XX AA

Korea

October 16, 2012

November 20, 2012

1. On March 20, 2012, it is confirmed that the Defendant’s claim for additional 000 won for the corporate tax of the company XX collaborative complex, the Plaintiff claimed to deliver to the Plaintiff, is not an estate claim.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit are assessed against the Plaintiff, and 1/10 are assessed against the Defendant, respectively.

Main Paragraph 1 and March 20, 2012 confirmed that corporate tax claim of KRW 000 for the collaborative complex, which the Defendant requested to deliver to the Plaintiff on March 20, 2012, is not a estate claim.

1. Basic facts

A. On October 18, 2010, the Seoul Central District Court declared bankruptcy against the company XX collaborative complex (hereinafter “non-party company”) (No. 2010 to 28), and appointed the Plaintiff as the bankruptcy trustee of the non-party company on the same day.

B. From June 30, 201 to October 31, 201 of the same year, the director of the Seoul Regional Tax Office confirmed that the non-party company purchased 92,260 shares from KimB, a shareholder of the non-party company on December 10, 2007, the non-party company acquired 000 won per share below the market price (00 won per share), which is a supplementary assessment under the Inheritance Tax and Gift Tax Act. Accordingly, the difference between market price and purchase price pursuant to Article 15 (Scope of Gross Income) of the Corporate Tax Act and Article 89 (Scope of Market Price) of the Enforcement Decree of the same Act is the industry of the non-party company as the gross income of the non-party company and the reserved disposition of the non-party company. On November 4, 2011, the non-party company notified the non-party company of the result of correction of its corporate tax base and tax amount in 207 and 00 won as the result of the above stock change and tax notice.

C. On December 1, 201, the head of Mapo District Tax Office issued a notice to the non-party company on December 31, 201, 200 won of corporate tax (hereinafter referred to as the "the defendant's corporate tax claim against the above corporate tax") upon the resolution of the Seoul Regional Tax Office's correction, and notified the non-party company that additional 00 won will be imposed if the above amount is unpaid within the above deadline (hereinafter referred to as "the defendant's tax claim against the above additional dues").

D. As the non-party company did not pay the above corporate tax by December 31, 201, which is the above-mentioned deadline, the head of Mapo Tax Office under the defendant sent a reminder to urge the non-party company to pay the above corporate tax amount of KRW 000 and additional tax of KRW 000.

E. On March 20, 2012, the director of the Mapo District Tax Office under the Defendant-affiliated Tax Office requested the Plaintiff, a bankruptcy trustee of the non-party company, to deliver the instant corporate tax claim and the instant additional dues as estate claims, but the Plaintiff rejected it on the ground that the said claims are not estate claims.

F. The relevant provisions of the Debtor Rehabilitation and Bankruptcy Act are as follows.

Article 473 (Scope of Estate Claims)

The following claims shall be estate claims:

2. A claim that can be collected pursuant to the International Collection Act or the Framework Act on Local Taxes (including a claim that can be collected according to the example of a disposition taken to collect the national tax and the collection order takes precedence over that of the general bankruptcy claims, subordinate bankruptcy claims provided for in the provisions of Article 46 shall be excluded): Provided, That claims on grounds arising after bankruptcy is declared shall be limited to claims that accrue to the bankruptcy estate

Article 46 (Subordinate Bankruptcy Claims)

(1) The following standing claims shall be junior bankruptcy claims higher than other bankruptcy claims:

2. The amount of damages and penalty resulting from nonperformance after bankruptcy is declared;

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 9, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the corporate tax claim of this case constitutes estate claims

According to the provisions of Article 473 subparagraph 2 of the Debtor Rehabilitation and Bankruptcy Act, unless it relates to the bankrupt estate, only a tax claim arising from the cause before the declaration of bankruptcy can be recognized as a estate claim. In this case, whether a tax claim arising from the cause before the declaration of bankruptcy is a "tax claim arising from the cause before the declaration of bankruptcy" shall be determined on the basis of whether the taxation requirements prescribed by the Act have been met before the declaration of bankruptcy (see, e.g., Supreme Court Decision 2004Da71904, Jun. 9, 2005). According to the provisions of Article 21 (1) of the Framework Act on National Taxes, the time when the establishment of a corporate tax liability is established is the time when the taxable period expires (No. 1); and

In light of the above facts, the corporate tax claim of this case can be recognized that the non-party company purchased securities at a price lower than the market price on December 10, 2007 from a person with a special relationship and added the difference between the purchase price and the market price to the profits, and it is a claim arising from the correction and imposition of corporate tax for the portion reverted to the business year 2007. In full view of the arguments in Eul evidence and evidence No. 2, the business period of the non-party company in 2007 to December 31 of the same year can be acknowledged that the non-party company's business period from January 1, 2007 to December 31 of the same year. Thus, the corporate tax claim of this case constitutes the tax claim of this case where the non-party company was declared bankrupt on the ground that the tax claim of this case's 4th of December 31, 2007, which is the last day of the business period for the above business period for the corporate tax of the non-party company, which is the corporate tax liability of this case.

Therefore, this part of the plaintiff's assertion is without merit.

3. Whether the instant additional dues constitute estate claims

On May 29, 2008, the Constitutional Court rendered a decision not to violate the Constitution (Article 2006Hun-Ga6, 11, 17) that "a claim for additional dues and increased additional dues arising from the cause that occurred before the declaration of bankruptcy" among the claims that can be collected under the "National Tax Collection Act" of Article 38 subparagraph 2 of the former Bankruptcy Act (amended by Act No. 7428 of March 31, 2005), but Article 473 subparagraph 2 of the current Debtor Rehabilitation and Bankruptcy Act explicitly provides that "a claim is excluded from subordinate bankruptcy claims under Article 446 of the current Bankruptcy Act within the scope of estate claims, unlike Article 38 subparagraph 2 of the former Bankruptcy Act," and Article 446 (1) 2 of the same Act provides that "the amount of damages and penalties arising from non-performance after the declaration of bankruptcy" shall be deemed to be a claim for arrears and increased additional dues within the scope of 30 days after the declaration of bankruptcy (see, e.g., Supreme Court Decision 20000Da14064.

Therefore, it is clear that the instant additional claim against the non-party company that the Defendant requested the Plaintiff on March 20, 2012 is not an estate claim, and as long as the Defendant contests this, the benefit to seek confirmation is recognized as the Plaintiff.

3. Conclusion

Therefore, the part concerning the plaintiff's claim for confirmation of existence of the estate claim against the claim of this case is dismissed as it is without merit, and the part concerning the claim for confirmation of existence of the estate claim against the additional claim of this case is justified and it is so decided as per Disposition.