Whether the priority of dividend is legitimate or not

Since the statutory date of additional claim is earlier than the date of establishment of the right to collateral security, the Plaintiff Director is without merit.

Article 81 of the National Tax Collection Act;

1. The plaintiff's appeal is dismissed.

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

the Gu Office's place of service and place of service

1. Purport of claim

○○○ District Court’s ○○○○○○○○○○○○○○○ Real Estate Auction Claim: (a) Of the dividend table drawn up by the above court, the dividend amount of KRW 91,628,360 against the Defendant is KRW 12,213,403; and (b) the dividend amount of KRW 585,043 against the Plaintiff is corrected to KRW 80,000,000, respectively.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff that ruled that the dividend table is corrected following the above shall be revoked. Of the dividend table prepared by the above court, the amount of 91,628,360 won against the defendant shall be 52,150,130 won, and the amount of 585,043 won against the plaintiff shall be corrected to 40,063,273 won, respectively.

1. Scope of judgment of party members;

The court of the first instance dismissed all the Plaintiff’s claim of this case that the auction court first distributed the amount of KRW 91,628,360 (the total amount of KRW 52,150,130 and the additional amount of KRW 39,478,230) that the Defendant, subordinate to the Plaintiff, claimed to deliver to the Defendant, rather than the Plaintiff. As such, the court of the first instance dismissed the Plaintiff’s claim that the amount of KRW 79,414,957 should be distributed to the Plaintiff. Accordingly, the Plaintiff appealed only the additional amount of KRW 39,478,230, which is limited to this part.

2. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each of the statements in Gap evidence 1, 2, Eul evidence 1, 3, 5, and Eul evidence 4-1, 4-2:

(a) Registration of the establishment of a neighboring mortgage by the plaintiff

○○○○○○○○-si ○○○○○○○○○○○○○○○○○○○○○○○○, u uU001d455 apartment u (hereinafter referred to as “the real property of this case”), with respect to the property of this case, the registration of creation of collateral security by the debtor, △△△△△△△△△, and the Plaintiff was completed.

B. The defendant's registration of seizure was completed

(1) On November 6, 1991, 00, ○○○○○○ Dong, ○○○○○○○, 284 square meters and three floors above the above ground did not file a final return on capital gains tax. Accordingly, the Defendant determined to impose an additional tax of KRW 47,417,970, plus an additional tax of KRW 7,90,90,000, and issued a notice of payment on January 15, 1996 with the due date for payment on January 15, 1996. The additional tax on capital gains tax (hereinafter referred to as “first capital gains tax”) became KRW 36,51,490 by continuing to pay the said capital gains tax.

(2) On November 23, 1995, ○○○○○○○○○-gu ○○○○○○○-gu ○○○○○○-gu did not file a final return on the capital gains tax base. Accordingly, the Defendant determined to impose capital gains tax on an occasional assessment of KRW 3,908,690, and sent a payment notice on October 1, 1996 to the payment notice made on October 31, 1996. The additional charge on the said capital gains tax (hereinafter referred to as “second capital gains tax”) was KRW 2,506,570, as ○○ continued to pay the said capital gains tax.

(3) ○○○ did not file a final return on global income tax for the year 195. Accordingly, the Defendant determined to impose global income tax of KRW 823,470, which reverts to the year 195, and sent a written notice of tax payment to April 30, 1997, which was made on April 30, 1997. As ○○ continued to pay the said global income tax, the additional charges on the said global income tax was KRW 460,170.

(4) The Defendant completed the seizure registration of the instant real estate under the title of ○○ District Court ○○○○○○○○○ District Court ○01d 455 Nauuu uu uu uu uu u 4555 registry office 2000.

(c) Preparation of distribution schedule;

(1) Following the Plaintiff’s enforcement of the above right to collateral security, the auction procedure for the instant real estate was initiated with ○○○○○○○○○○○○○○○○○○○○○○. The Plaintiff demanded the distribution of KRW 81,628,360,000 as the amount of credit, and the Defendant demanded the delivery of each of the above taxes and additional charges (i.e., KRW 52,150,130 + additional charges + KRW 39,478,230).

(2) On the date of distribution open on July 27, 2005, the court of auction prepared a distribution schedule with the content that distributes the amount to be actually distributed to the Defendant to the Plaintiff to the first order of KRW 91,628,360 among KRW 92,213,403, and KRW 585,043 to the Plaintiff to the second order.

(3) The Plaintiff appeared on the above date of distribution, and raised an objection against the amount of distribution of the Defendant, and filed a lawsuit of this case within seven days thereafter.

3. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the auction court recognizes the defendant's tax claim as the right which takes precedence over the plaintiff's right to collateral security, since the plaintiff's right to collateral security takes precedence over the defendant's transfer income tax, global income tax, and additional dues.

B. Determination

(1) The main text of Article 35(1) of the Framework Act on National Taxes provides that "national taxes, additional dues, or expenses for disposition on default shall be collected in preference to other public imposts or other claims" and the proviso of Article 35(1)3 of the same Act provides that "the same shall not apply to claims secured by a right to lease on a deposit basis, a pledge, or a mortgage where national taxes or additional dues are collected from the proceeds of sale of an asset for which the establishment of a right to lease on a deposit basis, a pledge, or a mortgage is proved prior to the date falling under any of the following items (hereinafter the statutory due date)." Thus, in the procedure of voluntary auction of real estate, the preferential relationship between a right to claim on a deposit basis and a claim on a mortgage

(2) However, in this case, as seen earlier, ○○○ determined that each transfer income tax and comprehensive income tax should be imposed on the Defendant by failing to file a final return on global income tax return, and that the Defendant sent a notice of tax payment because it did not file a final return on global income tax. As such, in a case where the tax authorities decide the tax base and tax amount occasionally, the date on which a tax payment notice is sent pursuant to Article 35(1)3 (b) of the Framework Act on National Taxes shall be deemed as the statutory due date. As such, the statutory due date of the transfer income tax 1 shall be deemed as the statutory due date of January 1, 1996; the statutory due date of the second transfer income tax 196; and the statutory due date of the global income tax 197.

(3) In addition, the additional or increased additional dues under Articles 21 and 22 of the National Tax Collection Act, which a taxpayer fails to pay taxes within the payment period, naturally occurs without the procedure of establishing additional dues by the tax authorities, and the amount thereof is determined, since the statutory payment period is the date when the tax liability becomes final and conclusive, or the above statutory payment period is the date when the above statutory payment period expires (see Supreme Court Decision 2001Da74018, Feb. 8, 2002). Thus, in the instant case, the Defendant’s statutory payment period of additional charges on the first transfer income tax shall be one month after the date when the payment period expires at the latest, and the statutory payment period of additional charges on the second transfer income tax shall be one month after the date when the payment period expires at the latest and one month after the date when the payment period expires at the latest, and the additional charges on the global income tax shall be more than the date when the payment period expires at the latest. Therefore, the Plaintiff’s assertion that the additional dues are more than the date before the expiration of the payment period.

4. Conclusion

Therefore, the plaintiff's claim for correction of the distribution schedule of this case is dismissed on the premise that the statutory date of each additional claim of this case is later than the date of establishment of the plaintiff's right to collateral security. The judgment of the court of first instance is just and it is without merit, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.