[1] Whether the request for delivery is unlawful merely because the head of a tax office requested delivery even though the request for delivery is stipulated by the general rules of the National Tax Collection Act (negative)

[2] Requirements for applying the principle of good faith under Article 15 of the Framework Act on National Taxes

[3] The case holding that where the tax authority established a mortgage on Gap's real estate among inherited property in order to secure inheritance tax claims, but changed the collateral and cancelled the mortgage on Eul's real estate in the course of establishing a mortgage on Eul's real estate among inherited property, it is illegal to request the delivery of Eul's real estate in the auction procedure for Gap's real estate without first executing the mortgage on

[4] In a case where payment by annual installments is permitted, whether the interest amount to be paid as the incidental tax is included in the national tax or additional dues under Article 35(1) of the Framework Act on National Taxes and the preferential right to taxation is recognized (affirmative)

[5] Legal due date of inheritance tax permitted to pay annual installments

[6] Whether a claim for delivery may be distributed to a national tax claim on the ground that it takes precedence over another claim under substantive law even if there is no legitimate claim for delivery (negative)

[7] In a case where a part of a number of real estate owned by a taxpayer is sold first and the tax authority preferentially paid out the tax, and the mortgagee at the auction real estate was disadvantaged compared to the simultaneous distribution, whether the mortgagee may subrogate the tax claim holder by analogical application of the latter part of Article 368(2) of the Civil Code (affirmative), and the contents of the subrogation

[1] General Rule 3-9-356 of the National Tax Collection Act provides that "the director of a tax office shall not request a delivery in cases where the taxpayer holds property which is easy to sell separately and it is recognized that the whole amount of delinquent national taxes can be collected by the property." Thus, the head of a tax office may decide upon the request for delivery at his/her discretion. In addition, the general rule of the National Tax Service is merely an administrative rule that instructs the criteria for interpretation and enforcement of tax-related Acts within the tax office, and it is not an effective law that binds the court or the people. Thus, even if the head of a tax office requested a delivery in cases where the request for delivery was made so that it may not be made, the request for delivery cannot be viewed as unlawful.

[2] The principle of good faith under Article 15 of the Framework Act on National Taxes refers to the fact that the interests of the other party who acted in trust in his/her speech and behavior shall not be infringed, and in order to apply this principle, the tax authority should issue a public opinion statement that is the object of trust to the interested parties such as

[3] The case holding that where the tax authority established a mortgage on Gap's inherited property among inherited property in order to secure inheritance tax claims, but changed the collateral and cancelled the mortgage on Eul's inherited property in the course of establishing a mortgage on Eul's inherited property, it is illegal to request the delivery of Gap's real property in the auction procedure for Gap's real property without first executing the mortgage on Eul's real

[4] Under the provision of Article 28 (1) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 196), where the inheritance tax amount exceeds 10,000 won, the head of a tax office may permit payment by annual installments upon receiving an application from the taxpayer in accordance with the method prescribed by the Presidential Decree. If the tax amount is paid by annual installments with permission for annual installments, the interest tax amount under the provision of Article 28-2 of the same Act should be paid by adding the interest tax amount. In this case, the nature of the interest tax amount is different from the additional tax that can be paid for delay due to delay of the tax obligation. However, in light of the fact that the interest tax amount is the kind of incidental tax imposed by an agreement with the taxpayer for delay of the inheritance tax payment by annual installments, the interest tax amount should be acknowledged as the priority of national tax or additional tax under the provision of Article 35 (1) of the Framework Act on National Taxes.

[5] In inheritance tax, the obligation to pay tax base and tax amount are definitely occurring by a taxation disposition that determines and notifies the tax base and tax amount. The permission for annual installments is not to change the tax liability and the payment deadline per originally determined by the disposition of imposition of inheritance tax, but to give the taxpayer the benefit of installment payment and the postponement of the payment period to the extent that it does not harm the national income. The imposition of a tax notice on the inheritance tax for which annual installments is permitted is already imposed on the taxpayer, and the tax payment notice is imposed on the taxpayer, to notify the tax amount and the payment deadline for the specific annual installments of the tax amount and to order the performance of the tax obligation, and thus, it does not change the rights and obligations of the taxpayer already imposed. Therefore, in inheritance tax, the statutory due date for determining the priority relationship with the secured debt such as mortgage pursuant to Article 35(1)3(b) of the Framework Act on National Taxes is the delivery date of the payment notice according to the original disposition, and even if the tax payment notice was

[6] A request for delivery under Article 56 of the National Tax Collection Act is to seek a distribution of delinquent national taxes by joining a compulsory refund procedure, which is already in progress by the tax authority, and therefore, it is equivalent to a demand for distribution in the real estate auction procedure under the Civil Procedure Act. Thus, the relevant national taxes are in arrears at the time of the request for delivery, and only if the tax authority requested a delivery by the successful bid date, it may be received a distribution. The amount of tax for which a legitimate request for delivery has not been made shall not be distributed regardless

[7] The latter part of Article 368 (2) of the Civil Code shall apply by analogy, in case where part of the number of real estate owned by the taxpayer is sold first and the tax authority has received taxes preferentially by the lien and the mortgagee of the auction real estate was disadvantaged than the case where the tax claim is distributed simultaneously from the above several real estate pursuant to Article 368 (1) of the Civil Code. If the tax authority received dividends from the above several real estate at the same time, the mortgagee may receive dividends from the auction procedure of other real estate in preference to the other real estate by subrogation within the extent of the amount which the tax authority could have received from the other real estate at the same time. However, in this context, the mortgagee is merely exercising the right of security by subrogation of the tax lien, which is the pertinent

[1] Article 56 of the National Tax Collection Act, General Rule 3-9-356 of the National Tax Collection Act / [2] Article 15 of the Framework Act on National Taxes / [3] Article 15 of the Framework Act on National Taxes, Article 56 of the National Tax Collection Act / [4] Article 35 (1) of the Framework Act on National Taxes, Article 28 (see current Article 71), Article 28-2 (see current Article 72) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) / [5] Article 35 (1) 3 (b) of the Framework Act on National Taxes, Article 25 (see current Article 76) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) / [6] Article 56 of the National Tax Collection Act, Article 605 (1) of the Civil Procedure Act / [7] Article 3568 of the Civil Act

[1] Supreme Court Decision 92Nu7580 delivered on December 22, 1992 (Gong1993Sang, 640), Supreme Court Decision 94Nu9283 delivered on May 23, 1995 (Gong1995Ha, 2290) / [2] Supreme Court Decision 90Nu8947 delivered on May 28, 1991 (Gong1991, 1807), Supreme Court Decision 94Nu4523 delivered on October 28, 1994 (Gong1994Ha, 3150), Supreme Court Decision 200Du5203 delivered on April 24, 200 (Gong201, 1266) / [39Da949794 delivered on April 194, 195] Supreme Court Decision 94Da93979 delivered on April 29, 194

[Plaintiff-Appellee] Korea Mutual Savings and Finance Company (Attorney Kim Ba-young et al., Counsel for plaintiff-appellee)

Korea

Busan High Court Decision 98Na10243 delivered on April 1, 1999

Of the part concerning the main claim of the lower judgment, the part concerning KRW 4,168,450, which was distributed as additional dues, is reversed, and that part of the case is remanded to Busan High Court. The remaining grounds of appeal by the Plaintiff are dismissed.

1. Basic facts

A. As Nonparty 1 died on September 7, 1990, 600/1390 shares on the ( Address 1 omitted) 1,284 and 138 square meters prior to the same Si ( Address 2 omitted) and 750 square meters prior to the ( Address 3 omitted) (hereinafter “the instant inherited property”) owned by Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 7, Nonparty 8, and Nonparty 9, who is his wife, jointly inherited the said ( Address 1 omitted)’s share to Nonparty 3, Nonparty 7, Nonparty 4, Nonparty 4, Nonparty 7, Nonparty 7, Nonparty 7, Nonparty 8, and Nonparty 1, following an agreement on the division of inherited property among the inheritors, the registration of transfer of ownership in the instant land was made on February 18, 1992.

B. On February 18, 1992, the area of 1,284.2 square meters in Kimhae-si ( Address 1 omitted) was divided into the area of 756.6 square meters on February 18, 1992 ( Address 1 omitted) and the area of 756.6 square meters on February 1, 199. The area of 756 square meters in the above ( Address 1 omitted) was 314.4 square meters on October 8, 1992 ( Address 1 omitted), the area of 198.4 square meters ( Address 5 omitted), the area of 163 square meters on April 4, 198 ( Address 6 omitted), and the area of 163 square meters and 80.8 square meters on April 4, 1992, the area of co-owned property was divided into the area of 4) and 527.6 square meters on April 1, 196 (hereinafter “the land in this case”).

C. On August 1, 1992, the director of the tax office North Busan District Tax Office imposed and notified the inheritance tax amount of KRW 231,559,020 (the inheritance tax amount of KRW 198,479,160 + the defense tax of KRW 33,079,860, and the 31st day of the same month for the payment period) on the property of this case as to the non-party 3, non-party 4, non-party 5, non-party 7, non-party 7, non-party 7, non-party 7, non-party 8, non-party 8, non-party 9, non-party 3, non-party 4, non-party 5, non-party 9, non-party 2, non-party 9, non-party 9, non-party 2, non-party 9, non-party 198, and the amount of the tax for annual payment of KRW 15,003,80,19.

D. On January 19, 193, the director of the North Busan District Tax Office accepted the application for change of the security right by the above Nonparty, and revoked the registration of establishment of a mortgage on the land of this case on February 8 of the same year, after obtaining the registration of establishment of a mortgage on three parcels, including the above Nonparty’s address 1 omitted) and ( Address 5 omitted), and ( Address 6 omitted). On the other hand, on February 26, 1993, the Plaintiff borrowed money to Nonparty 10, while obtaining the registration of establishment of a mortgage on the land of this case with the maximum debt amount of KRW 60 million.

E. However, as the heir of this case failed to pay inheritance tax on August 31, 1993, the director of the tax office of the North Busan District Tax Office attached the land of this case on January 12, 1994, and thereafter, on August 31, 1994, the director of the tax office of the village tax office (the director of the tax office separates the family tax office from the North Busan District Tax Office on April 7, 1994) determined on April 7, 1995 the amount of the three-minute inheritance tax to be the three-minute inheritance tax on August 31, 1995, and then revoked the permission for annual payment of the third-minute inheritance tax on August 31, 1995 (7,441,720 won (72,200,000 won + the interest tax amount on the date of cancellation 5,241,720 won) and notified the payment period.

F. Meanwhile, upon the Plaintiff’s application for voluntary auction based on the right to collateral security, an auction procedure for the instant land was conducted by the Changwon District Court (19750), and the Plaintiff reported 546,802,100 won as the secured debt of the said right to collateral security. On June 30, 1995, the head of the competent tax office reported 91,723,660 won of inheritance tax on August 31, 1993 (i) the payment period of KRW 61,647,520 + the amount of KRW 6,363,30 + the amount of KRW 15,81,80 + the amount of KRW 15,81,80 + the amount of KRW 74,104,320 of inheritance tax on August 31, 1994 + the amount of KRW 523,820,000 + the amount of inheritance tax on KRW 15,185,7985,7085.7)

G. On October 20, 1995, when distributing dividends, the auction court held that the total amount of the inheritance tax amount in the instant case takes precedence over the Plaintiff’s loan claims, and distributed dividends of KRW 226,580,960 among the total amount of KRW 428,74,90 to the Defendant, which shall be deemed to take precedence over the Plaintiff’s loan claims, and prepared a distribution schedule to distribute the amount of KRW 202,163,940, which is the remainder to the Plaintiff. The Plaintiff raised an objection against the total amount of the Defendant’s dividends and deposited the dividends.

H. On October 26, 1995, the Plaintiff filed a lawsuit of demurrer against distribution with the Changwon District Court 95Gahap9570 on November 22, 1996 and received a judgment of winning part of the case on November 22, 1996, but the Busan High Court, which was the appellate court, revoked the first instance judgment and declared the termination of the lawsuit on November 28, 1997 on the ground that the lawsuit above was terminated as the legal fiction of withdrawal of lawsuit in the first instance court on December 15, 1995, and the appellate judgment became final and conclusive as it is.

I. Meanwhile, on the other hand, on September 30, 1995, the head of the village tax office seized the land ( Address 5 omitted) and ( Address 6 omitted) on June 12, 1996, and disposed of it by public sale on June 12, 1996, and on the other hand, on the proceeds from sale ① KRW 61,223,540 out of the inheritance tax on August 31, 1994 (=33,987,080 out of the main tax amount of KRW 57,423,820 + additional tax of KRW 15,81,80 + additional tax of KRW 12,549,660 out of the additional tax amount of KRW 11,424,660), ② the inheritance tax amount of KRW 68,304,150 on May 15, 1995 + the tax amount of KRW 486,786,480,97,970,97

(j) Upon the determination of the distribution schedule as above, the director of the tax office received 120,20,207,550 won which is the remaining tax amount in arrears and 5,17,870 won which is the remaining tax amount in arrears on December 29, 1997. ① The tax amount in arrears on August 31, 1993 91,723,660 won + the amount of 51,647,520 won + the amount of 23,712,810 won + the amount of 23,363,30 won + the amount of 23,483,890 won which was 28,48,890 won which was the total amount of 25,000 won in arrears and 5,117,870 won which was the delinquent tax amount, but the amount of 16,164,165 won in arrears and 250 won was appropriated for the amount of 50,616,46530 won in arrears and 14.6

2. Judgment on the grounds of appeal as to the primary claim

(a) 1 and 2;

General Rules 3-9-356 of the National Tax Collection Act cited in the grounds of appeal provides that "the head of a tax office may choose not to request a delivery in cases where a taxpayer holds property which is easy to sell and is not the object of a third party's right in order to request a delivery and it is recognized that the whole amount of national taxes in arrears can be collected by such property." In addition, the general rules of the National Tax Service are merely an administrative rule that instructs the criteria for interpretation and enforcement of tax-related Acts within the tax office, and do not have an effective law that is binding upon the court or the people (see, e.g., Supreme Court Decisions 92Nu7580, Dec. 22, 1992; 94Nu9283, May 23, 1995). Even if the head of a tax office requests a delivery without a request, such a request shall not be made in accordance with the principle of trust and good faith, and it shall not be deemed unlawful for the sole reason that the tax office made a request for delivery to the interested party.

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim for damages or unjust enrichment in accordance with the plaintiff's good faith principle on the ground that the tax authority did not first exercise the right to tax collection on the land in this case without any evidence to prove that there is a circumstance satisfying the requirements of the general rules of the above basic rules of the National Tax Collection Act, and that the above provision alone does not violate the abuse of rights or the good faith principle, or violates the principle of equality. In light of the above legal principles and records, the court below rejected the plaintiff's claim for damages or unjust enrichment in accordance with the plaintiff's violation of the principle of good faith on the ground that the tax authority did not exercise the right to tax collection on the land in this case without any evidence to prove that the tax authority expressed its intention not to exercise the right to tax collection on the land in this case in the process of converting the tax mortgage on the land ( Address 1 omitted), ( Address 5 omitted), ( Address 5 omitted), and the real estate in this case's auction procedure, and that there is no violation of the principle of trust and good faith.

(b) Third point;

According to the provision of Article 28 (1) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996; hereinafter the same), where the inheritance tax amount exceeds 10,000 won, the head of a tax office may permit payment by annual installments upon receiving an application from the taxpayer in accordance with the method prescribed by the Presidential Decree. If the tax amount is paid by annual installments upon obtaining permission for annual installments, the interest tax amount provided for in Article 28-2 of the same Act shall be paid by adding the interest tax amount. In this case, the nature of the interest tax amount is different from the additional tax that can be paid for delay due to delay of the tax obligation, which constitutes the agreed party due to delayed payment (see Supreme Court Decision 94Da49816, Mar. 14, 1995). However, the interest tax amount is the kind of incidental tax imposed by the agreement of the taxpayer due to delayed payment of inheritance tax amount. In light of the fact that the tax amount paid by annual installments includes the tax amount equivalent to the tax amount paid by annual installments.

The court below's decision that the above annual installments interest rate is recognized as the priority right is just, and there is no error of law by misunderstanding the legal principles of interest tax amount, which affected the conclusion of the judgment.

(c) 4.5 points;

Since inheritance tax requires the Government to determine the tax base and amount of tax pursuant to Article 25 of the former Inheritance Tax Act, the statutory due date for determining the priority relationship with secured claims such as mortgage pursuant to Article 35(1)3(b) of the Framework Act on National Taxes shall be the date for the issuance of a tax notice.

As can be seen, liability for payment in inheritance tax is finally established by a taxation disposition that determines and notifies the tax base and tax amount. The permission for payment in annual installments is not to change the tax liability and the payment deadline per originally determined by the original disposition of imposition of inheritance tax, but to give the taxpayer the benefit of installment payment and the postponement of the payment. The payment notice on the inheritance for which payment in annual installments is permitted is already imposed on the taxpayer, and the tax payment notice is imposed on the taxpayer, to notify the tax amount and the payment deadline for the specific annual installments among the taxes for which payment in annual installments is permitted, and to order the performance of the tax obligation, and it does not change the taxpayer's rights and duties already imposed (see Supreme Court Decisions 92Nu305, Oct. 27, 1992; 93Do3041, Aug. 9, 1994). In inheritance tax, the statutory due date is the date of the original disposition of payment in annual installments, and even if the permission and the payment notice was made after annual installments, it does not change the statutory due date.

In the same purport, the court below's decision that the inheritance tax of this case imposed prior to the date of registration of the plaintiff's establishment of a neighboring mortgage takes precedence over the secured debt of the above secured mortgage is correct, and there is no error of law in the misapprehension of legal principles as to the legal nature of permission for payment by annual installments, and as long as the court below's decision on this part is justified, even if the court below erred as alleged in the ground of appeal in addition to the scope of the above tax

(d) Six points;

A request for delivery under Article 56 of the National Tax Collection Act is to seek a distribution of national taxes in arrears by joining the procedure for compulsory realization, which is in progress by the tax authority, and therefore, it is similar to a demand for distribution in the real estate auction procedure under the Civil Procedure Act. Thus, the relevant national taxes are in arrears at the time of the request for delivery, and only if the tax authority requested a delivery by the successful bid date, it may be paid a distribution. The amount of tax which does not make a legitimate request for delivery shall not be paid regardless of whether the national tax claims take precedence over other claims under the substantive law (see Supreme Court Decisions 91Da44834, Apr. 28, 1992; 93Da19276, Mar. 22, 1994).

According to the above facts, since 4,168,450 won, out of the additional charges appropriated by the defendant as dividends, was incurred on or after June 13, 1996 (the day following the public auction disposition of the above 1.i.e., the day following the public auction disposition of the above 1.1.) due to the failure to pay the inheritance tax in installments within the payment period of August 31, 1994, there was no room for filing a claim for delivery by the auction date (the court is significant in September 1, 1995) of this case, the above additional charges cannot be received from the auction proceeds of

Nevertheless, the court below erred by misapprehending the legal principles as to the legal nature and requirements of the request for national tax grant, which affected the conclusion of the judgment, in deciding that the additional dues, which did not demand a distribution, can be distributed solely on the basis of the substantial reasons that the priority of the additional dues is recognized.

3. Judgment on the grounds of appeal on the conjunctive claim

(a) First point:

According to the above facts, the inheritance tax of this case in arrears was paid out after receiving a dividend of the proceeds from the sale of the land of this case, and the person paying the proceeds therefrom is the non-party who is the owner of the land of this case, so there is no room for the plaintiff who received a partial dividend of the proceeds from the sale as

The judgment of the court below to the same purport is just, and there is no violation of law as alleged in the grounds of appeal.

(b) Second point:

In case where part of the number of real estate owned by a taxpayer is sold first and the tax authority has received tax preference from the auction proceeds, and the mortgagee of the real estate at the auction proceeds has been disadvantaged than the case where tax claims are simultaneously distributed from the above several real estate pursuant to Article 368(1) of the Civil Act, the latter part of Article 368(2) of the Civil Act shall be applied by analogy, and if the tax authority received dividends from the above several real estate at the same time, the mortgagee shall be entitled to receive dividends in preference to other real estate auction procedures by subrogation within the limit of the amount which the tax authority could have received from other real estate at the auction proceeds (see Supreme Court Decisions 97Da9352 delivered on December 22, 1998, 200Da32475 delivered on September 29, 200). In this context, the mortgagee is merely exercising the legal real right of priority, and in this context, it cannot be subrogated to a tax mortgage acquired from the basic taxation claim or separate land held by the tax authority.

In accordance with these legal principles, the pertinent land is not subject to a tax mortgage, and the head of the Provisional Tax Office paid the instant inheritance tax in preference to the auction price of the instant land on the basis of the tax lien. As such, the auction price of the instant land was repaid in preference to the above inheritance tax, and even if the Plaintiff, who is a subordinate mortgagee, was at a disadvantage than the simultaneous distribution of the tax claim from the inherited property, even if the tax authority received a dividend from the inherited property at the same time, the Plaintiff may receive a dividend in preference to other inherited property in the auction procedure on behalf of the tax claimant, who is the senior mortgagee, within the limit of the amount that the tax authority could have received at the same time received a dividend from the inherited property, on behalf of the tax authority, to the extent of the amount that he could have received the dividend from the auction price of the other inherited property, and the head of

Although the reasoning of the judgment below differs from its reasoning, the conclusion of rejecting the plaintiff's claim seeking the registration of transfer of mortgage by asserting that the tax mortgage on the above ( Address 1 omitted) land may be subrogated, is justifiable, and there is no error of law by misunderstanding the legal principles as alleged in the ground of appeal

(c) Third point;

According to the provisions of Articles 370 and 342 of the Civil Act, a mortgage may also be exercised against the money or other things to be obtained by the mortgager due to the loss, damage, or expropriation of the mortgaged property. Such subrogation is recognized in cases where the mortgage cannot be actually or legally exercised on the whole or part of the original mortgaged property. As in this case, if the property is sold through the execution of the right to collateral security through the execution of the right to collateral security in auction procedure, there is no room for a subrogation for the reason that the secured claim was not paid in full due to the claim for national tax payment.

The judgment of the court below to the same purport is just and it is not erroneous in the misapprehension of legal principles as alleged in the grounds of appeal.

4. Conclusion

Therefore, the part of the judgment of the court below regarding the main claim is reversed, and this part of the case is remanded to the court below. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)