[1] The meaning of "national tax related to attachment" under Article 36 (1) of the Framework Act on National Taxes concerning the priority of seizure

[2] If there are a number of national taxes related to the attachment under the National Tax Collection Act and the amount allocated to the national taxes out of the public auction price falls short of the total amount of the national taxes, the method of appropriation

[3] In case where the chief of a tax office requested a court of execution to deliver the national tax in arrears pursuant to Article 56 of the National Tax Collection Act in the compulsory execution procedure under the Civil Execution Act, and the dividend does not meet the total amount of the national tax requested for delivery in the pertinent distribution procedure

[1] Article 36(1) of the Framework Act on National Taxes provides that when a taxpayer’s property is seized by a disposition on default of national taxes, if other national taxes, additional dues, disposition fees for arrears, or local taxes are requested to be granted, the national taxes, additional dues, disposition fees for arrears, or disposition fees for arrears related to the seizure shall be collected in preference to other national taxes, additional dues, disposition fees for arrears, and local taxes requested to be granted. Article 47(2) of the National Tax Collection Act provides that the seizure of real estate, etc. under Article 45 of the same Act shall have its effect on any delinquent amount of national taxes, the legal date of which comes before the ownership of the relevant attached property is transferred. The purport of the above provision is to make a registration once the seizure is registered, it shall have the effect of the seizure as a matter of course without the need to obtain a new registration on the delinquent amount of national taxes that have come after the registration on the seizure against the same person. Thus, “national taxes related to the seizure” referred to in the seizure prior principle includes not only national taxes

[2] If there are multiple kinds of national taxes related to the same collection authority's request for attachment or delivery and the amount allocated falls short of the total amount of national taxes, there is no provision in the National Tax Collection Act in the order of appropriation, and there is no provision in the Civil Act that the provisions concerning statutory appropriation of obligation under the Civil Act apply mutatis mutandis to the tax liability. However, tax liability is a legal obligation established under the provisions of Acts and subordinate statutes, and its contents cannot be determined arbitrarily by the parties concerned. Tax liability is a legal obligation under the public law, as a matter of principle, and administrative litigation is governed by the Administrative Litigation Act. Accordingly, tax claims are subject to priority (Articles 35, 36, and 37 of the Framework Act on National Taxes) and have characteristics such as public interest and public interest, and accordingly, priority (Article 3 of the National Tax Collection Act Chapter III) is recognized. In light of the above, it is reasonable to apply the legal principle concerning appropriation of statutory appropriation of obligation under the Civil Act to the creditor's total amount of national taxes paid in excess of the amount of national taxes paid in compliance with the legal principles.

[3] Article 145 of the Civil Execution Act provides that the proceeds from sale of an auction procedure shall be distributed in the order of priority under the Civil Act, the Commercial Act, and other Acts, but no provision is provided for appropriation in the case where dividends distributed to the same creditor are insufficient to extinguish the whole amount of multiple claims held by the same creditor, and the National Tax Collection Act does not provide for the appropriation of multiple national taxes by the same collecting authority, and the characteristics of tax claims, etc. in the compulsory execution procedure under the Civil Execution Act, where the chief of a tax office requested the executing court for a delivery of the national tax in arrears in accordance with Article 56 of the National Tax Collection Act, and the distribution of dividends falls short of the total amount of the national tax requested for a delivery in the procedure of disposition on default under the National Tax Collection Act, it cannot be said that it is appropriate to allow the director of a tax office to appropriate the appropriation of dividends in the procedure of disposition on default under the National Tax Collection Act to be made in accordance with other legal principles than the legal principles of appropriation on default under the Civil Act.

[1] Article 36(1) of the Framework Act on National Taxes, Articles 45 and 47(2) of the National Tax Collection Act / [2] Article 81 of the National Tax Collection Act, Articles 477, 478, and 479 of the Civil Act / [3] Articles 56 and 81 of the National Tax Collection Act, Article 145 of the Civil Execution Act, Articles 477, 478, and 479 of the Civil Act

[1] Supreme Court Decision 87Nu827 delivered on January 19, 198 (Gong1988, 421) / [2] Supreme Court Decision 99Da35447 delivered on March 15, 2002 (Gong2002Sang, 859)

Do resident mutual savings banks (Attorneys Park Jong-il et al., Counsel for the plaintiff-appellant)

Korea

Chuncheon District Court Decision 2004Na1183 delivered on December 22, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 36(1) of the Framework Act on National Taxes provides that when a taxpayer’s property is seized pursuant to a disposition on default of national taxes, if other national taxes, additional dues, disposition fees for arrears, or local taxes are requested to be issued, the national taxes, additional dues, disposition fees for arrears, or disposition fees for arrears related to the seizure shall be collected in preference to other national taxes, additional dues, disposition fees for arrears, and local taxes requested to be granted. Article 47(2) of the National Tax Collection Act provides that the seizure of real estate, etc. under Article 45 of the same Act shall have its effect on the delinquent amount of national taxes, the legal date of which comes before the ownership of the attached property is transferred. The purport of the above provision is that if the seizure is registered once once, it shall have the effect of a new seizure registration as well as on the delinquent amount of national taxes, which occurred after the registration on seizure of the same person (see Supreme Court Decision 87Nu827, Jan. 19, 198).

B. In the same purport, the court below determined that the transfer income tax of August 10, 199 (the statutory date of August 10, 199), which became due after the seizure, not only the aggregate gift tax of this case which was the cause of the seizure, but also the transfer income tax which became due after the seizure (the statutory date of August 10, 199), shall be the national tax related to the seizure, and the judgment of the court below on the premise that the aggregate gift tax of this case and each transfer income tax of this case are national taxes related to the seizure at the auction procedure of Chuncheon-si ( Address 2 omitted) forest land (hereinafter “instant 2 real estate”), is just, and there is no error of law in the misapprehension of legal principles as to the attachment attachment priority as

2. Regarding ground of appeal No. 2

A. As to the distribution of proceeds from a public sale, Article 81(1) of the National Tax Collection Act provides that national taxes, additional dues and disposition fees for arrears related to the seizure (Article 81(1)1), national taxes, additional dues, disposition fees for arrears, local taxes or public charges (Article 2), and claims secured by the right of lease on a deposit basis, pledge, or mortgage related to the attached property (Article 3) shall be apportioned. Paragraph (4) thereof provides that if the proceeds from sale fall short of the total amount of national taxes, additional dues and disposition fees for arrears and other claims, the head of a tax office shall set and distribute the order and amount to be apportioned pursuant to the Civil Act and other Acts and subordinate statutes, and Article 81(2) of the National Tax Collection Act provides that the money seized under Article 80(1)1 of the same Act and the money received from the request for delivery under subparagraph 4 shall be appropriated for national taxes, additional dues and disposition fees for arrears related to the seizure or request for delivery, respectively.

However, in cases where there are multiple kinds of national taxes related to the request for seizure or delivery by the same collector and the amount allocated falls short of the total amount of national taxes, there is no provision in the National Tax Collection Act with respect to the order of appropriation, and there is no provision in the Civil Act with respect to the application of the provisions concerning statutory appropriation for payment under the Civil Act. In the fact that the tax obligation is a monetary obligation, the tax obligation is a legal obligation established under the provisions of Acts and subordinate statutes and its contents cannot be decided arbitrarily by the parties concerned, and the tax obligation is a legal obligation under the Public Act and in principle, the Administrative Litigation Act is applied to the administrative obligation. Accordingly, the tax obligation has characteristics such as public interest and public nature, and accordingly the priority (Article 35, 36, and Article 37 of the Framework Act on National Taxes) and the right of self-performance (Article 3 of the National Tax Collection Act) is recognized, it cannot be said that the legal principle of the legal obligation of appropriation for payment of the tax obligation under the provisions of Articles 477 through 479

In addition, considering the fact that the head of a tax office concurrently holds the status of a creditor of a claim (national tax) who is the person in charge of the procedure and at the same time obtains satisfaction from the procedure, the procedure for the disposition of arrears under the National Tax Collection Act does not constitute unlawful unless there are special circumstances such as undermining the delinquent taxpayer’s repayment interest, even if there are multiple national taxes related to attachment and the amount allocated to the national taxes is short of the total amount of the national taxes, even if the head of a tax office first appropriated the national taxes without complying with the legal principles on appropriation of performance under the Civil Act (see Supreme Court Decision 9Da35447 delivered on March 15, 202).

Meanwhile, Article 145 of the Civil Execution Act provides that the proceeds from sale of an auction procedure shall be distributed in the order of priority under the Civil Act, the Commercial Act, and other Acts, but no provision is provided for appropriation in cases where dividends distributed to the same creditor are insufficient to extinguish the whole amount of multiple claims held by the same creditor, and as seen earlier, the National Tax Collection Act does not provide for appropriation of multiple national taxes by the same collecting authority, and in light of the characteristics of tax claims, etc., in a compulsory execution procedure under the Civil Execution Act, the head of a tax office requests a court of execution for the delivery of national taxes in arrears pursuant to Article 56 of the National Tax Collection Act, in cases where the dividends distributed to the court of execution fall short of the total amount of the national taxes requested for delivery in the relevant distribution procedure, it cannot be said that it is appropriate to allow the director of a tax office to appropriate appropriation of the proceeds from distribution in the procedure for disposition on default under the National Tax Collection Act and in accordance with other legal principles, even if the dividends paid in the auction procedure were appropriated first to any national taxes in compliance with the legal principles under the Civil

B. In the same purport, the court below held that the court below was legitimate to appropriate the public auction proceeds distributed to the head of Chuncheon Tax Office in the public auction procedure for the real estate No. 1 in accordance with the ratio of the appraised value of the real estate No. 1, 2, and the land No. 3 omitted (hereinafter "third real estate of this case") to the additional gift tax of this case and the transfer income tax (the statutory date August 10, 199). The amount appropriated to the additional gift tax of this case shall be appropriated to the additional gift tax of this case in proportion to the appraised value of the real estate No. 1, 2, and the land No. 3 omitted) of Chuncheon City (hereinafter "third real estate of this case" of this case. In the voluntary auction procedure for the real estate No. 2 of this case, all of the dividends distributed to the Chuncheon Tax Office No. 3 of this case shall be appropriated to the transfer income tax of this case.

3. As to the third ground for appeal

According to the records, the defendant asserted that the tax amount of the third real estate of this case 184,98,360 won as the corresponding tax amount of the third real estate of this case 184,98,360 won (this case 137,503,630 won, additional dues and increased additional dues 47,484,730 won) was paid in full, but in the lawsuit of this case, the principal tax, additional dues and increased additional dues at the time of receiving the distribution of the third real estate of this case are 182,438,597 won in total and 117,080,681 won in the principal tax of this case, and additional dues and increased additional dues are 65,357,916 won in the distribution procedure of the third real estate of this case (this case 26 April 2004). The defendant asserted that there was no error in the misapprehension of the principal tax and additional dues within the scope of the total amount requested to be delivered within the period of the period of distribution in the grounds for appeal.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)