[1] Criteria for determining whether a tax claim due to a "tax claim due to a cause before bankruptcy declaration" under Article 38 subparagraph 2 of the Bankruptcy Act constitutes a estate claim

[2] The case holding that in case where the tax authority disposes of the income of a corporation omitted as the representative's recognition bonus and notifies the change in the amount of income, if the notice of change in the amount of income arrives after the declaration of bankruptcy, it does not constitute estate claims under Article 38 subparagraph 2 of the Bankruptcy Act since the tax claim established after the declaration of bankruptcy does not constitute estate claims under Article 38 subparagraph 2 of the Bankruptcy Act

[1] Article 38 subparagraph 2 of the Bankruptcy Act, Article 21 and Article 22 of the Framework Act on National Taxes / [2] Article 38 subparagraph 2 of the Bankruptcy Act, Article 21 (2) subparagraph 1 of the Framework Act on National Taxes, Article 22 (2) 3 of the Framework Act on National Taxes, Article 67 of the Corporate Tax Act, Article 106 of the Enforcement Decree of the Corporate Tax Act, Article 135 (4) of the Income Tax Act, Article 19

[1] [2] Supreme Court Decision 81Nu6 delivered on December 22, 1981 (Gong1982, 222) / [1] Supreme Court Decision 2001Du7268 delivered on September 4, 2002 (Gong2002Ha, 2360) / [2] Supreme Court Decision 90Nu4631 delivered on February 26, 1991 (Gong1108)

The number of bankruptcy trustees in bankruptcy of the bankrupt debtor corporation

Republic of Korea and one other

Seoul High Court Decision 2004Na32567 delivered on November 18, 2004

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The issue of whether a tax claim constitutes an estate claim under Article 38 subparagraph 2 of the Bankruptcy Act is determined on the basis of whether the taxation requirements prescribed by the Act have been met before the declaration of bankruptcy (see Supreme Court Decision 2001Du7268, Sept. 4, 2002). If the tax office disposes of the omitted corporate income as a representative recognition and notifies the change in the amount of income, the liability to pay corporate tax on the withheld corporate tax shall be established at the time when the notice of change in the amount of income is served on the relevant corporation. The liability to pay corporate tax on the withheld corporate tax shall be established at the time of delivery of the notice of change in the amount of income to the relevant corporation. If the notice of change in the amount of income reaches the notice of change in the amount of income, the obligation to pay corporate tax on the withheld corporate tax and resident tax on the amount of corporate tax shall be established after the declaration of bankruptcy. Thus, if it is not related to the bankruptcy estate, it does not constitute an estate claim under Article 38 subparagraph 2 of the Bankruptcy Act (see Supreme Court Decision 200Nu166, Dec. 16, 29, 196, 198.

In the same purport, the court below held that insofar as the notice of change in the income amount of this case was given after the declaration of bankruptcy, the corporate tax (income tax) claims and resident tax claims subject to corporate tax do not constitute estate claims under Article 38 subparagraph 2 of the Bankruptcy Act, since they were caused by a cause after the declaration of bankruptcy, and they do not constitute estate claims under Article 38 subparagraph 2 of the Bankruptcy Act, it is just in light of the above legal principles and related Acts and subordinate statutes, and records, and there is no error of law by misunderstanding the legal principles

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Defendants. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)