Seoul Administrative Court 2009Guhap19519 ( October 22, 2009)

early 209west2310 (2010.04.08)

In the case of a sale-type trust, trust property shall not be seized for the reason of delinquency of the truster's tax.

A trust real estate can be exceptionally seized only when the trustee's property is the right to the truster caused by the cause prior to the trust or the right to the trustee's disposal of the trust affairs. The truster's value-added tax related to the seizure was caused by the cause prior to the trust, and the seizure disposition is null and void because it is not the

The contents of the decision shall be the same as attached.

1. The defendant's appeal is dismissed.

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

1. Purport of claim

A. The primary purport of the claim is to confirm that attachment disposition against the right to deposit claims made by the defendant against the plaintiff on April 7, 2009 is invalid.

B. Preliminary claim: The attachment disposition against the Plaintiff on April 7, 2009 by the Defendant against the Plaintiff is revoked.

2. Purport of appeal

The judgment of the first instance shall be revoked. The plaintiff's primary and conjunctive claims shall be dismissed in entirety.

1. Details of the disposition;

A. On November 30, 2004, the Plaintiff, a company established for the purpose of trust, etc. of land and its fixtures, was entrusted with △△△△ Co., Ltd. (hereinafter referred to as a “non-party company”) by the non-party company in accordance with the Trust Act, and newly constructed the △ apartment (hereinafter referred to as the “instant apartment”) on the ground of the instant land after having been entrusted with the non-party company ○○○○○○-dong and 5-5 and 23 lots (hereinafter referred to as the “instant land”), and entered into a trust contract for sale-type land (hereinafter referred to as the “instant trust trust contract”) with the content that the Plaintiff would return its profits to the non-party company after selling, leasing, managing, and operating the instant apartment as trust property.

B. After completing the registration of ownership transfer under the name of the Plaintiff pursuant to the instant trust agreement, the Plaintiff newly constructed the instant apartment on the ground of the instant land and sold it to Nonparty Company as its supplier, issued a tax invoice with Nonparty Company as its supplier, and received the sales price as a national bank ordinary deposit account (hereinafter “the instant deposit account”) opened in the name of the Plaintiff.

C. After that, the non-party company filed a final tax return on the sales price of the instant trusted real estate in 2008 with the Defendant, but did not pay the value-added tax accordingly.

D. Accordingly, on March 9, 2009, the defendant notified the non-party company of the value-added tax of KRW 550,749,350 (including additional tax without payment) for the second period of 2008 on which the non-party company failed to pay it, which led to the amount of delinquent tax of KRW 567,271,830 (including additional tax of KRW 16,522,480). On April 7, 2009, the defendant issued a disposition to seize the deposit claim (hereinafter referred to as "the deposit claim of this case") in the attached list in the name of the plaintiff on the account of the non-party company as the delinquent taxpayer.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 to 7 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case, which seized the deposit claim of this case, which is a trust property, based on the non-party company's value added tax claim against the non-party company, constitutes a disposition of seizure of a third party's property, which is not a taxpayer, and its defect is significant and apparent. Thus, it

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the person liable to pay value-added tax is the taxpayer due to the sale of the instant trusted real estate

A) Where a trustee supplies or receives goods or services in the course of developing a trust property or managing or disposing of a trust property under the Trust Act, the trustee is a contracting party and the trustee performs the trust business. However, since profits and expenses incurred from the development, management, disposal, etc. of the trust property are ultimately reverted to the truster, the trust under the Trust Act is also based on the calculation of the truster. Thus, the trust under the Trust Act is also a trust under Article 6 (5) of the Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008) that provides or receives goods or services in the name of a third party, such as a consignment under the name of the truster. Accordingly, in the course of performing the trust business such as the development, management, disposal, etc. of trust property under the Trust Act, it is reasonable to deem the business operator and the person liable to pay value-added tax under the Value-Added Tax Act as the truster (see, e.g., Supreme Court Decision 200Da33034, Apr. 25, 2003).

B) According to the above facts, the plaintiff was entrusted with the land of this case from the non-party company in accordance with the Trust Act and constructed the apartment house of this case on its ground, and the plaintiff became the contracting party, but the plaintiff was the contracting party, but the profit and expenses incurred from the sale of the real estate of this case eventually accrue to the non-party company, which is the truster, and thus the non-party company's account is substantially attributable to the non-party company. Thus, the taxpayer of value-added tax due to the sale of the real estate

2) The subject to whom the instant deposit claim belongs

A) A trust under the Trust Act refers to a legal relationship in which a truster transfers a specific property right to a trustee, or takes other measures, and a trustee manages and disposes of such property right for a certain person’s interest or for a specific purpose, based on a special fiduciary relationship between a truster and a trustee. In cases where a property right is transferred to a trustee under a trust agreement, such trust property is absolutely transferred to the trustee, and the property right is not reserved against the truster in an internal relationship with the truster (see, e.g., Supreme Court Decision 2007Da54276, Mar. 13, 2008).

B) According to the evidence No. 6, Article 1(1) of the trust agreement of this case provides that the non-party company shall entrust the land of this case to the plaintiff and take over the land of this case. Article 1(2) of the trust agreement of this case provides that the purpose of trust is to build the apartment of this case and sell the real estate of this case to the trust property of this case. Article 11(2) of the trust agreement provides that "the sale price of the real estate of this case (including contract money and intermediate payment)" as one of the trust property. In addition, Article 19 of the Trust Act provides that the trustee's property acquired due to the management, disposal, loss, damage, or other reasons of trust property belongs to the trust property. On the other hand, whether the owner of the right to the trust property under the Trust Act belongs to the trust property under the Trust Act and whether the trustee and taxpayer are different. Thus, considering the above legal principles of the trust and the contents of the trust agreement of this case, the trust agreement of this case belongs to the trust property of this case or the trust property of this case.

3) Whether the Defendant can enforce compulsory execution against the instant deposit claim, a trust property, based on the value added tax claim against the non-party company

A) According to the provisions of Article 24 (1) of the National Tax Collection Act, which provides for the requirements for seizure as a disposition on default, the disposition of seizure against a third party’s property, which is not a taxpayer, shall be null and void as the content of the disposition is not legally realized (see, e.g., Supreme Court Decision 96Da17424, Oct. 15, 1996). If a truster transfers the ownership of real estate to a trustee and a trust relationship between the parties is established under the Trust Act, unlike a simple title trust, the trust property shall belong to the trustee and shall not be deemed a truster’s property even after the trust is made. Further, the main sentence of Article 21 (1) of the Trust Act does not allow compulsory execution or auction against the trust property by prescribing that the trust property cannot be subject to compulsory execution or auction from the trustee’s own property and the truster’s property. Accordingly, according to the facts acknowledged earlier, the disposition of this case shall be deemed as a disposition on the trust property under the name of the third party, which is a taxpayer.

B) Whether the value-added tax claim against the non-party company constitutes either the right arising before the trust or the right arising in the course of performing the trust affairs under the proviso of Article 21(1) of the Trust Act

(1) Article 21(1) of the Trust Act provides that compulsory execution or auction may not be conducted against a trust property. It provides that compulsory execution or auction against a trust property is exceptionally permitted only in the case of "right arising from the cause prior to the trust" or "right arising from the process of the trust affairs." In this context, "right arising from the cause prior to the trust" means the case where the truster has already been able to enforce compulsory execution or auction against the trust property before the trust, such as the case where the truster has already established a mortgage or an executory claim, or where the real estate attached on the trust property has been trusted. The "right arising from the process of the trust affairs" generally refers to the right arising from the trustee's ordinary process, such as the management or disposal of the trust property. However, even without such right, taxes or public charges imposed on the trust property, warranty liability arising from the defects of the trust property sold through the trust affairs, or the right arising from the trust property itself, such as the other party's right corresponding to the purpose of the trust property, claims arising from the trust property or claims arising from the trust affairs.

(2) According to the facts acknowledged above, since the defendant did not seize the real estate of this case based on the above value-added tax claim before the trust under the Trust Act was performed under the trust agreement of this case, the defendant's value-added tax claim against the non-party company cannot be seen as falling under the "right arising from the cause before the trust under the proviso of Article 21 (1) of the Trust Act". Further, the above value-added tax claim against the non-party company can not be seen as falling under the "right arising from the plaintiff's ordinary disposal of the trust affairs" because it cannot be seen as falling under the "right arising from the plaintiff's ordinary disposal of the trust affairs, which is the trustee performing the trust business."

(iv)Preliminaryity;

Therefore, so long as the defendant's claim of value-added tax against the non-party company cannot be seen as falling under "right arising from a cause before the trust or "right arising from a cause before the trust" under the proviso of Article 21 (1) of the Trust Act or "right arising from a cause before the trust", the attachment disposition of this case, which is the trust property under the name of the plaintiff, the trustee, based on the non-party company's value-added tax claim after the trust under the trust agreement of this case, is a seizure against the non-party company, which is the truster, and the defect is significant and obvious

3. Conclusion

Therefore, the plaintiff's primary claim of this case should be accepted without examining the conjunctive claim on its own ground. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.