The concept of "the tax" includes additional dues.

The concept of "the pertinent tax" which takes precedence over claims secured by mortgage, etc. before the statutory due date under the proviso of Article 1(1)3 of the Framework Act on National Taxes includes additional dues.

Article 35 of the Framework Act on National Taxes (Priority of National Taxes)

2016 Gohap30598 Demurrer against distribution

AAAA Bank, Inc.

Korea

June 30, 2017

August 18, 2017

1. Of the distribution schedule prepared by the same court on November 3, 2016, the amount of 4,265,873,049 won against the plaintiff shall be 4,303,123,323 won, and the amount of 366,029,49,490 won against the defendant shall be corrected to 328,779,216 won, among the distribution schedule prepared by the Seoul Central District Court 2013,000 (Dus) and the auction of real estate amounting to 2013,000,000 won, respectively.

2. The plaintiff's remaining claims are dismissed.

3. The costs of the lawsuit are assessed against the plaintiff 90% and the defendant 10%, respectively.

Cheong-gu Office

Of the distribution schedule prepared by the Seoul Central District Court on November 3, 2016, the amount of 4,265,873,049 won against the plaintiff among the distribution schedule prepared by the same court on the real estate auction case of 2013 Mata 0000 (Dual) and the 20131,902,539 won against the defendant and the amount of 366,029,490 won against the defendant shall be corrected to 0 won, respectively.

1. Basic facts

A. After Nonparty Y died on December 8, 2009, Nonparty Y completed the registration of ownership transfer on the ground of legacy with respect to ○○○○-dong 635-7, 562.8 square meters and its ground buildings owned by the Deceased on April 14, 2010 (hereinafter “instant real estate”).

B. On May 24, 2012, the Plaintiff completed the registration of creation of a neighboring mortgage, which became the Plaintiff, on May 24, 2012, with respect to the instant real estate, with the maximum debt amount of KRW 000,000,000,000,000,000,000,000,000 won, and as a security for it (hereinafter “instant collateral security”).

C. Meanwhile, on July 1, 2012, the head of the ○○○ Tax Office (hereinafter referred to as the “head of the ○○○ Tax Office”) issued a notice of the decision to pay KRW 00,000,000,000 according to the rectification of inheritance tax to sulfur, by July 31, 2012, which was the due date, on the other hand, he/she did not pay inheritance tax by the said due date (hereinafter referred to as “instant inheritance tax”). After the date, the ○○ Tax Office attached the instant real estate and its ground on October 29, 2012, in sequence.

D. As to the instant real estate thereafter, on August 19, 2013, upon the application of YY Co., Ltd., Nonparty YY, the Seoul Central District Court rendered a decision to commence compulsory auction (Seoul Central District Court 2013 Ma00000), and on the Plaintiff’s application, a decision to commence voluntary auction (2013 Mata0000) at the same court on December 9, 2013. The instant real estate was sold at KRW 7790,000,000 from the above auction procedure on September 29, 2016.

E. On October 13, 2016, 00 won (=additional 6,687,500 won x (i.e., 222,916,90 won x less than 136,425,00 won x 22,675,90 won x 90 won x 136,425,00 won [i.e., 22,916,90 x 00 won x 222,916,90 x less than 10 won) x 36,06,00 won x 51 won x 0.12,000 won x 0.0.0.012,02,029,490 won x 51) / [i.e., the amount of the Plaintiff’s claim for loans ] 36,076,376,377,490 won].

F. On November 3, 2016, this court: (a) determined the amount to be actually distributed on the date of distribution opened on November 3, 2016 as KRW 7,768,870,276; and (b) set up a distribution schedule (hereinafter “instant distribution schedule”) with the content that distributes the amount to be actually distributed to the Plaintiff, who is a mortgagee, in the second order, KRW 366,029,49 (100%) in the ○○ Tax Office; (c) and (d) KRW 4,265,873,049 (the distribution ratio was 76.31%, and the details of dividends other than the Plaintiff and the Defendant were omitted). The Plaintiff appeared on the said date of distribution and raised an objection to the entire amount of dividends to the Defendant on November 9, 2016.

Facts without any dispute over recognition, Gap's 1, 2, 5, and Eul's 1 through 3 (including numbers; hereinafter the same shall apply), the purport of the whole pleadings.

2. Determination on the cause of the claim

A. The plaintiff's assertion

The defect in the disposition of inheritance tax of this case is so serious that it is null and void, or it is unlawful for the Defendant to preferentially pay dividends to the Plaintiff, who is the mortgagee, beyond the legitimate scope of the pertinent tax in the auction procedure of this case

B. Defect in the disposition of inheritance tax of this case

As alleged by the Plaintiff, there is no evidence to deem that there exists a serious defect in the disposition imposing the inheritance tax of this case, and the Plaintiff’s above assertion is rejected.

(c) Scope of the relevant tax;

1) Furthermore, among the total amount of inheritance tax requested by the defendant, the scope of the pertinent tax which takes precedence over the plaintiff's right to collateral security shall be examined. The proviso of Article 35 (1) 3 of the Framework Act on National Taxes provides that "national taxes and additional dues imposed on the pertinent property shall take precedence over the claims secured by the mortgage, etc. prior to the statutory due date," and Article 35 (5) provides that "national taxes imposed on the property" refers to inheritance taxes, gift taxes and comprehensive real estate

Meanwhile, "Inheritance tax imposed on the property" refers only to the amount equivalent to the ratio of the appraised value of the inherited property of this case among the total amount of inheritance tax (see Supreme Court Decision 86Nu768, Mar. 24, 1987).

2) Comprehensively taking account of the aforementioned evidence as a result of the order issued by the Director of the Regional Tax Office to submit the tax information and the whole purport of the pleadings, the sum of the appraised value of the real estate of this case at the time of calculating the inheritance tax of this case is KRW 0,000,000 ($000,000,000,000,000,000,000,000). The debts related to the real estate of this case are KRW 0,000,000,000,000,000,000,000,000 won, as the net property value of the real estate of this case x 00,000,000,000,000 won, x 00,000,000,000 won, x 00,000,000,00 won, aggregate amount of the real property of this case on the real estate of this case.

3) On this issue, the Plaintiff asserts that the statutory due date of the additional dues is when the time limit for payment of the pertinent national tax or the prescribed time limit thereafter, and that the statutory due date of the pertinent inheritance tax is later than May 24, 2012, which is the date of the establishment of the instant right to collateral security, and thus, the additional dues on the instant inheritance tax do not take precedence over the said right to collateral security. However, as seen earlier, the concept of the “relevant tax” that takes precedence over the claims secured by the mortgage prior to the statutory due date under the proviso of Article 1(1)3 of the Framework Act on National Taxes, is clearly included in the additional dues (the legal principle that the Plaintiff pays is applicable to the general national tax that is not the pertinent tax), and the said argument by the Plaintiff is rejected.

4) Meanwhile, the defendant alleged that the "ratio of the total appraised value of the inherited property of this case" means the ratio between the net values of the real property of this case and the value of the total inherited property, not the ratio between the values of the real property of each case and the value of the real property of each case. However, the inheritance tax is a national tax imposed by recognizing the ability to pay taxes for the property owned by the pertinent property itself, and in calculating the inheritance tax pursuant to the Inheritance Tax and Gift Tax Act, the debts related to the inherited property of this case are excluded from the value of the inherited property, considering that the "ratio of the total appraised value of the inherited property of this case" is reasonable to grasp the ratio between the net values of the real property of this case and the value of the entire inherited property.

In addition, the defendant asserts that the funeral expenses should be deducted from the "net property value of the inherited property", but the funeral expenses incurred after the commencement of the inheritance are not the debts of the decedent, but the debts of the heir who inherited the property, and thus, they do not constitute the inheritance debts to be deducted in calculating the net property value of the inherited property. Therefore, the defendant's assertion is not accepted.

D. Sub-committee

Therefore, the Defendant is entitled to receive dividends in preference to the Plaintiff only within the scope of KRW 328,779,216, which is equivalent to the total ratio of the inherited property of the instant real estate, from KRW 366,029,490, which is the sum of the principal and the additional charges of the instant inheritance tax.

Therefore, in the auction procedure of this case, the amount of dividends against the defendant among the dividend table prepared by the Seoul Central District Court on November 3, 2016 shall be 36,029,490 won, 328,779,216 won, and the amount of dividends against the plaintiff 4,265,873,049 won shall be 4,303,123,323 won (=4,265,873,049 won + (36,029,490 won - 328,779,216).

3. Conclusion

Thus, the plaintiff's claim of this case is legitimate within the above scope of recognition, and part of it is accepted, and the remainder is dismissed.