Daegu District Court-2015-Annex-207154 (No. 22, 2016)

If there are opposing claims when the tax authority exercises the right to indemnity due to the subrogation of a delinquent taxpayer, the right to indemnity is limited.

After receiving the loan of this case, the Defendant had a opposing claim equivalent to the amount of subrogated payment by paying a part of the Defendant’s funds or the loan of this case as part of the purchase price. Thus, the Defendant cannot exercise the right to indemnity against the Defendant among the right to indemnity equivalent to the amount of the loan of this case owned by the Defendant.

Civil Act

The defendant shall pay to the plaintiff 896,028,580 won with 15% interest per annum from November 28, 2015 to the day of complete payment.

1. Purport of claim

The defendant shall pay to the plaintiff 896,028,580 won with interest rate of 150% per annum from November 28, 2015 to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by the respective descriptions of Gap evidence 1 through 11, Eul evidence 2, 3, 4, and 16, and the purport of the whole pleadings, and there is no counter-proof.

A. On February 18, 2002, BB Construction Co., Ltd. (hereinafter referred to as BB Construction, the representative director is the defendant) purchased each of the lands listed in BB Construction Co., Ltd. Nos. 1 and 2 listed in the attached Table Nos. 1 and 2 (hereinafter referred to as “○○ land”) and newly constructed buildings listed in the attached Table Nos. 3 on the land No. 1 and 2 on Mar. 13, 2002, after completing the registration of ownership transfer in the BB Construction.

B. BB Construction entered into a sales contract with A on November 3, 2003 to sell 360,000,000 won of land No. 2 to A, and the contract deposit amount of KRW 40,000,000 was agreed to be paid immediately on November 12, 2003, and accordingly, the registration of ownership transfer was completed in November 12, 2003 in the future of AA.

BB Construction between AA and AA on November 7, 2003 set forth the third building price in KRW 1,210,000,000.

40,000 won of the down payment, the intermediate payment of 660,000,000 won was agreed on November 12, 2003 to be paid at the same time as the registration of ownership transfer, and accordingly on November 12, 2003, the registration of ownership transfer was completed in the AA future for the above building.

C. On November 12, 2003, AA set up a collateral (PP District Court’s book support registration and receipt No. 00000) with a maximum debt amount of KRW 1,970,000,000 for the debtor and the mortgagee as agricultural cooperative on the land and building No. 2 and No. 3, 2003, and Nonghyup deposited the loans of KRW 1,600,000 to the Agricultural Cooperative Account under the name of the defendant on the collateral of the above collateral (hereinafter “the loans of this case”).

D. BB Construction sold 1 land to A on December 16, 2003 at KRW 455,000,000, and the down payment of KRW 50,000,000 was entered into a sales contract immediately after the contract was entered into, and the remainder of KRW 400,000,000 was each paid in December 26, 2003, and the registration of ownership transfer was completed in December 26, 2003.

E. On December 10, 2003, AA has completed business registration with the trade name of JJJ and operated accommodation in the third building.

F. On February 11, 2008, AA entered into a sales contract with EE to sell 3,950,000,000 won for 1,20,000 won for 3,950,000 won for 3,000,000 won for 200 won for 200,000 won for 3,50,000 won for 3,500,000 won for 3,500,000 won for 3,500,000 won for 1,970,000,000 won for 20,000 won for 3,00,000 won for 3,00,000 won for 3,600 won for 2B Construction’s debt to the South-gu Office of PP Metropolitan City in lieu of 151,60,000 won for 3,600 won for 220.

Accordingly, EE shall pay the above purchase price by subrogation of the loan debt, etc. of this case.

Upon completion of AA, on March 19, 2008, AA completed the registration of ownership transfer in the EE in respect of land Nos. 1, 2, and 3 buildings.

G. The director of the DongPP Tax Office under the Plaintiff-affiliated Tax Office shall report on the disposal of the land and third buildings of the AA.

On May 31, 2009, after notifying AA of capital gains tax of KRW 307,002,00 by the deadline for payment until August 31, 2009, it was confirmed through the audit and inspection by the Board of Audit and Inspection that AA under-reported the tax base, etc. of capital gains tax, it was notified of KRW 164,023,310 as of June 30, 201 by adding the deadline for payment until June 30, 201. The Plaintiff’s tax claim against AA due to its default of capital gains tax as of November 18, 2015, as indicated in the following table.

H. On September 10, 2015, the Plaintiff attached the claim for indemnity against the Defendant by AA to repay the debt of the instant loan under the name of the Defendant, and notified the Defendant of the seizure around that time.

2. Determination on the cause of the claim

A. The parties' assertion

1) The plaintiff's assertion

AAA sells 1,2 land and 3 buildings to EE and has EE each sell them.

In lieu of the payment of part of each purchase price, the Defendant has the right to indemnity equivalent to the above loan against the Defendant. The Plaintiff seized the above right to indemnity held by AA based on a tax claim against AA and claimed the Defendant for collection thereof. As such, the Defendant is obliged to pay the Plaintiff the amount of KRW 896,028,580, which falls within the scope of the seizure claim and the delay damages.

2) The defendant's assertion

AAA lack of funds at the time of purchase of land 1, 2 and 3 from BB Construction.

The loan of this case was received under the name of the defendant who operated the construction of BB with her husband and her husband, instead of AAA with insufficient ability and credit to pay interest as the principal agent of the loan from the agricultural cooperative. The loan of this case was subsequently disbursed not only as the purchase price for BB construction but also as the third building, and made the defendant transfer part of the revenue to the defendant each month and made the defendant pay interest on the loan of this case. Accordingly, the actual debtor of the loan of this case is AA and AA made the payment of the loan of this case to EE merely because it is the fact that the actual debtor of the loan of this case is the AA, and the payment of the loan of this case was made by AA to EE

B. The debtor of the instant loan

each entry of the above facts of recognition and evidence Nos. 8, Eul 5 through 15, 17, 18, 21

Comprehensively taking account of the following circumstances, it is reasonable to view the Defendant as the Defendant, on the ground that the Defendant was able to obtain the instant loan under the name of the Defendant and manage it with the business funds of BB Construction operated by himself, and that each of the statements in the evidence Nos. 24 and 25 was insufficient to reverse the fact of recognition, and that there was no counter-proof otherwise.

① It is common that the loan of this case is a loan secured by real estate and its execution or scale is determined on the basis of the value of security rather than the debtor’s occupation and career.

Since Gyeong was scheduled to operate accommodation business at the time of the above loan, and actually registered accommodation business with the trade name of PPP, and intended to operate accommodation business at the third building, there was no need for AAA to obtain the loan of this case in the name of another person.

② The details that the instant loan was paid after being deposited into the account in the Defendant’s name are as follows (see subparagraph 5 of this Article). Among the expenditure, there are many items that are not directly related to the payment of the purchase price for BB construction of AA, such as the repayment of the bill loan to the signature house of BB construction or the repayment of the Defendant’s TT and RR loans. Thus, rather than the management of the instant loan, the Defendant would have decided whether to pay the loan.

③ The Defendant agreed that the sales amount for AA’s BB Construction with the instant loan was agreed.

It is not paid in accordance with the payment date, but most of the funds withdrawn from one’s account and paid part of the above sales price regardless of the date of the above agreement (see, e.g., paragraph (b) below), and it is difficult to deem that the purpose of the loan was solely the preparation of the purchase price for BB construction of AA.

④ In light of the fact that AA and the Defendant were in a family relationship, and that BB construction was conducted tax investigation from the order of November 2005 and was under economic difficulties, such as being subject to high-amount corporate tax collection, the Defendant is not enough to recognize that AA had a burden of interest on the said loan solely on the ground that a part of the profits accrued while operating a lodging business at the third building of AAA and periodically transferred it to the Defendant’s agricultural bank account on a non-regular basis.

C. The obligor of the loan of this case

AAA entered into a contract with BB Construction to purchase each of the above real estate for the purpose of this contract, and completed the registration of transfer of ownership or the registration of preservation of ownership of each of the above real estate. AA has completed business registration under the trade name of PPP and operated accommodation business in the third building. AA has filed a lawsuit against BB construction by asserting that “AA shall have the right to indemnity equivalent to the above debt amount for BB construction by letting the purchaser of the above real estate pay the debt to BB construction for the remaining PPP tax, and the purchaser of the above real estate.” On April 21, 2016, the court determined that AA paid the debt of BB construction in lieu of payment of the purchase price of each of the above real estate, and that the judgment in favor of the Plaintiff became final and conclusive (PP district court Decision 20100, Oct. 0, 200, 200).

Therefore, the fact that AA disposes of land and buildings Nos. 1, 2, and 3, and that EE, the buyer, shall repay the instant loan in lieu of the payment of the purchase price can be deemed to have been repaid by AA on behalf of the defendant, who is the debtor of the instant loan, on behalf of the defendant.

D. Defendant’s obligation of reimbursement and collection performance

As seen earlier, AA’s subrogation of the Defendant, the debtor of the loan of this case,

Since it is recognized that the defendant repaid the repayment of the deposit, the defendant is obligated to claim the amount equivalent to the repayment amount of the loan to the AA, barring any special circumstances, and since the plaintiff seized the claim for reimbursement against the defendant based on the tax claim against the AA and sought the collection of the claim, the defendant is obligated to pay the plaintiff the amount equivalent to 896,028,580 won and the delay damages equivalent to the amount of seizure of the plaintiff out of the above claim for reimbursement.

3. Judgment on the defendant's counterclaim

A. The defendant's assertion

Even if the actual obligor of the instant loan is the Defendant, AA shall have the full number of the Defendant.

Since the Defendant requested for repayment on behalf of the Defendant for the purchase-price debt for GB Construction, and the Defendant paid the amount equivalent to the above loans for AA, such as the Defendant’s payment of the purchase-price for BB Construction in lieu of the purchase-price at the above request of AA, the AA did not have a right to indemnity against the Defendant.

B. Determination

When a person who has pledged his/her property to secure another person's obligation has repaid his/her obligation, the person who has pledged his/her property to secure another person's obligation shall be entitled to reimbursement.

As a matter of course, a creditor may exercise his/her right to claim and security by subrogation of the creditor. However, since a person who has pledged his/her property to secure another's property may exercise such right to the extent that he/she can claim reimbursement with his/her own right, even when the person who has pledged his/her property to secure another's property has discharged his/her property to the extent that he/she cannot exercise his/her right to claim reimbursement against the debtor due to other circumstances (see, e.g., Supreme Court Decision 2013Da80429, Apr. 30, 2014).

According to each of the statements and arguments in Gap evidence Nos. 5 through 27 and the purport of the whole pleadings, the defendant is recognized to have completed the payment of the amount as stated below between November 12, 2003 and December 26 of the same year, and Gap paid the same amount as stated in the "AA payment" in the same Table to BB construction, and the amount as stated in the "A payment" in the same Table to AB construction (=360,000 + 1,210,000 + 45,000,000 won + 360,000,000 + 45,000,000 won).

According to the above facts, the defendant's funds or funds immediately after receiving the loan of this case.

Of the instant loans, the amount of KRW 1,115,00,000, out of the sales amount of KRW 1,115,000,000, which was paid by subrogation for the BB Construction of AA, shall be deemed to have been subject to an opposing claim equivalent to the said subrogated amount against AA. Therefore, the amount of KRW 1,115,00,00 equivalent to the Defendant’s opposing claim out of the amount of KRW 1,60,000, which AA had been holding against the Defendant, shall not be able to exercise a claim for reimbursement, and the remainder of KRW 485,00,00 (=1,60,000,000) shall not be able to exercise a claim for reimbursement (i,60,000,000). Accordingly, the Defendant’s above assertion is reasonable within the extent of recognition, and the remainder is not reasonable.

4. Conclusion

Since the defendant is obligated to pay the plaintiff, who is the person entitled to the collection of seizure against AA, the amount of KRW 485,00,000 and the damages for delay calculated by the rate of 5% per annum prescribed in the Civil Act from November 28, 2015 to May 25, 2017, which is the date of the judgment of this case where it is deemed reasonable for the defendant to dispute over the existence of the obligation or the scope of the obligation to pay for the payment of the plaintiff's claim, since the defendant is obligated to pay the plaintiff, who is the person entitled to the collection of seizure against AA, the amount of KRW 485,00,00,00 and the amount of damages for delay calculated by the rate of 15% per annum prescribed in the Act on Special Cases concerning

Therefore, the part against the defendant in excess of the above cited amount in the judgment of the court of first instance is unfair, and it is so revoked and the plaintiff's claim corresponding to the revoked part is dismissed. Since the remaining parts in the judgment of the court of first instance are justified with the conclusion, the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.