Income tax claims that arrive at the rehabilitation corporation after the commencement of rehabilitation procedures for the rehabilitation company are subject to the rehabilitation claim of withheld income tax.

After investigating the tax investigation of the company under rehabilitation, the omission of sales shall be confirmed, and the omission shall be treated as a representative bonus, and the notice of change in its income amount shall be served on the company under rehabilitation, and subsequent notice of correction shall be deemed as the "public-interest claim" under the Debtor Rehabilitation Act, and thus, debt collection after the seizure shall not be deemed unjust

2014 Gaba 19409 Return of Fraudulent Gains

Debtor Rehabilitation Company AABE

Korea

January 9, 2015

February 6, 2015

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Cheong-gu Office

The defendant sought a ruling that the plaintiff shall pay 5% interest per annum from May 16, 2014 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

(a) Commencement, etc. of rehabilitation procedures for the rehabilitation company;

(1) On July 19, 201, U.S. District Court Decision 2011 Gohap 12 decided on July 19, 201, on the rehabilitation company AAB (hereinafter “the rehabilitation company”) commenced rehabilitation procedures based on the rehabilitation decision.

(2) The Plaintiff was appointed as a custodian of the rehabilitation company in the above rehabilitation procedure.

(3) On May 17, 2012, the Ulsan District Court rendered the rehabilitation company approval order.

(b) Correction, notification, etc. of wage and salary income tax;

(1) During the period from January 7, 2013 to January 11, 2013, the head of the Dongsan District Tax Office under the Defendant confirmed the facts, such as the omission of sales tickets, after investigating the suspicion of omission in sales in the taxable period from July 1, 201 to December 31, 2012 by the rehabilitation company.

(2) On March 2013, the head of the Ulsan District Tax Office calculated the omission amount of sales in the year 201 as an OOO of the rehabilitation company and treated it as a representative and a participant, and served a notice of change in the amount of income on the rehabilitation company.

(3) As the rehabilitation company did not pay the withholding tax based on the above change in the income amount, the head of the Ulsan District Tax Office, around August 2013, notified the rehabilitation company of the correction and notification of the OOO of the wage and salary income tax for the amount of withholding tax for the year 201 (hereinafter “instant correction notification”).

(c) Disposition on default;

(1) On May 2, 2014, the head of the Ulsan District Tax Office attached a corporate free deposit account (Account Number O-O-O-O-O-O-O-O) held by the rehabilitation company against BB agricultural cooperatives (hereinafter “instant attachment”) even though the rehabilitation company did not pay the withheld labor income tax based on the notice of rectification of the instant case (hereinafter “the instant attachment”).

(2) On May 15, 2014, the head of the Ulsan District Tax Office collected part of the deposit claims above attached according to the procedure for disposition on default, and appropriated them to the Joint OOO members, such as wage and salary income tax and related additional charges based on the instant correction notice.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1 to 3, Eul evidence 1-2, Eul evidence 2-4, the purport of the whole pleadings

2. The parties' assertion and judgment

A. The Parties’ major arguments

(1) The plaintiff's assertion

(A) In full view of Article 179(1)9(a) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”), Article 67 of the Corporate Tax Act, and Article 106 of the Enforcement Decree of the Corporate Tax Act, the “tax imposed on the bonus reverted or deemed reverted to the representative” shall be limited to the “tax withheld at the time of commencement of the rehabilitation procedure.” The rectification notice of the instant case was completed after 2013. It is apparent that the tax claim based on the rectification notice of the instant case did not have room for withholding at the time of commencement of the rehabilitation procedure for the rehabilitation company. The said tax claim does not constitute a public-interest claim, and constitutes a rehabilitation claim under Article 179(1)9(a) of the Debtor Rehabilitation Act

(B) The rehabilitation claim is subject to exemption without reporting the rehabilitation procedure, and even if it is not so, it shall be repaid according to the rehabilitation plan. Nevertheless, the head of Dongsan District Tax Office, the defendant, who is affiliated with the defendant, forced the collection of the OOO members through the seizure and collection of this case by designating the tax claim based on the correction notice of this case as the executive title. The defendant is unjust in this regard.

(C) Meanwhile, a compulsory collection based on a taxation claim that cannot be considered as an enforcement title and a compulsory collection through collection should be treated the same as a seizure and collection based on an invalid taxation disposition. Therefore, the Defendant’s return of unjust enrichment is established regardless of the validity of the instant seizure.

(D) The Defendant is obligated to pay to the Plaintiff unjust enrichment OOO and damages for delay.

(2) The defendant's assertion

(A) As the instant attachment constitutes a disposition of an administrative agency, it is not necessarily void and has not been revoked, it cannot be deemed that the Defendant gains, without any legal ground, equivalent to the amount that the Defendant forced to collect. The Plaintiff’s lawsuit filed without revocation of the said disposition is unlawful.

(B) The Plaintiff’s claim premised on the above taxation claim is not a rehabilitation claim but a public-interest claim, and thus, is without merit.

B. Determination

(1) If the State collects taxes through the procedures of seizure, collection, etc., under the premise that the amount of money to be collected would be unjust enrichment, the amount of money to be collected, under the premise that there is no defect in the taxation disposition, which is the premise of seizure, should be deemed null and void as the seizure itself is significant and apparent, or that the seizure itself is revoked by the administrative agency itself or by the appeal procedure, and as a result, the amount of money to be collected, which

The head of the Dongsan District Tax Office shall confirm the omission of sale and treat the omission as the representative bonus after the tax investigation of the rehabilitation company, serve the notice of change in the amount of income to the rehabilitation company and served the notice of correction in this case, and attach this case by deeming the tax claim as the "public-interest claim" under the Debtor Rehabilitation Act. The seizure of this case constitutes an "administrative disposition". However, even if the above tax claim falls under the " rehabilitation claim under the interpretation of related Acts and subordinate statutes" and the above seizure is not a "defect taking the taxation claim that cannot be regarded as the executive title", it cannot be deemed as null and void immediately because it is difficult to regard the above defect as an "clear and serious defect". Furthermore, the seizure of this case is not revoked. Further, the defendant collected the OOO won from the rehabilitation company through the seizure of this case and its subsequent collection. Since the seizure of this case remains valid, it cannot be deemed that the defendant's aforementioned seizure and its subsequent collection have no legal interest in the collection.

Therefore, even if a tax claim based on the correction notice of this case falls under a rehabilitation claim, the Defendant cannot be deemed to have unjustly gained profits equivalent to the amount collected based on the seizure and collection of this case. The Plaintiff’s assertion is without merit (However, it does not mean that the lawsuit of this case itself is unlawful on such grounds)

(2) Meanwhile, tax obligations subject to Article 179(1)9(1)9 of the Debtor Rehabilitation Act, which were established before the commencement of rehabilitation procedures, are interpreted as having limited to property claims, i.e., rehabilitation claims, the payment deadline of which has not yet arrived (see, e.g., Supreme Court en banc Decision 2010Du2723, Mar. 22, 2012). The tax obligation to withhold taxes on recognized profits, shall be deemed to have been established at the time when the notice of change in income reaches the pertinent corporation and simultaneously becomes final (see, e.g., Supreme Court en banc Decision 2002Du1878, Apr. 20, 206). If a notice of change in income amount was delivered to a corporation after the commencement of rehabilitation procedures, the income tax claim subject to withholding becomes a cause arising after the commencement of rehabilitation procedures and does not constitute rehabilitation claims under Article 118 subparag. 1 of the Debtor Rehabilitation Act (see, e., Supreme Court Decision 2007Du1979, Jan. 28, 2010).

The fact that rehabilitation procedures for the rehabilitation company commenced on July 19, 201, and the fact that the head of Ulsan District Tax Office served a notice of change in the amount of income, which is the premise of the rectification notice in the instant case, on or around March 2013, is recognized as above. Tax claims based on the rectification notice in the instant case, following the commencement of rehabilitation procedures for the rehabilitation company, do not constitute rehabilitation claims under Article 118 subparag. 1 of the Debtor Rehabilitation Act, as income tax claims that arrive at the rehabilitation corporation, and rather, fall under public-interest claims under Article 179(1)2 and 5 of the Debtor Rehabilitation Act.

Since a tax claim based on the correction notice of this case constitutes a public-interest claim, it is difficult to deem that the head of the Ulsan District Tax Office, instead of following the rehabilitation procedure for the rehabilitation company, forced collection of the above tax claim amount through the seizure and collection of this case, and it is difficult to deem that the defendant gains profit without any legal ground equivalent to the above tax claim amount.

Therefore, the Plaintiff’s assertion on the premise that a tax claim based on the instant rectification notice is a rehabilitation claim under Article 179(1)9(a) of the Debtor Rehabilitation Act is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.