Seoul High Court 2006Na54691 (Law No. 24, 2008)

Whether additional or increased additional charges or increased additional charges incurred after the declaration of bankruptcy constitute estate claims;

If the additional dues and increased additional dues have the nature of damages for delay of tax payment, but the claims that can be collected pursuant to the National Tax Collection Act or the example of collection of national taxes are clearly defined as estate claims, the additional dues, etc. shall be deemed as estate claims under the same Article.

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

Article 35 of the Framework Act on National Taxes, Article 38 subparag. 2 of the former Bankruptcy Act

Article 21 of the former National Tax Collection Act, Article 22 of the former National Tax Collection Act

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but the assertion on the grounds of appeal by the appellant is clear that it falls under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal. Thus, the appeal is dismissed under Article 5 of the same Act. It is so decided as per Disposition

[Seoul High Court 2006Na54691 (Law No. 24, 2008)]

1. Revocation of a judgment of the first instance;

2. All of the plaintiff's claims are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Each additional dues and increased additional dues incurred after December 7, 2004 with respect to each tax claim listed in the attached Table on the current status of the Defendants owned by the Defendants to the Plaintiff are subordinate bankruptcy claims.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in the entries in Gap evidence 1, Eul evidence 2-1 through 13, Eul evidence 1-5, Eul evidence 2-1, and Eul evidence 2.

A. On December 7, 2004, 2004, the bankrupt ○○○○ Rourur Company (hereinafter “the bankruptcy company of this case”) was declared bankrupt on December 7, 2004, and the Plaintiff was appointed as the bankruptcy trustee of the bankruptcy company of this case from the above court on the same day.

B. The bankruptcy company of this case received national or local tax assessment, such as the attached list, from the Defendants, and is delinquent without paying the above tax by the due date. The company bears the additional dues equivalent to 5% of each principal tax and principal tax stated in the attached list, and the increased additional dues equivalent to 1.2% of each principal tax and principal tax (hereinafter “the instant tax liabilities or tax claims”).

2. The assertion and judgment

A. The plaintiff's assertion

Article 38 subparagraph 2 of the former Bankruptcy Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter referred to as the "former Bankruptcy Act") provides that "a claim that can be collected pursuant to the National Tax Collection Act or the example of collecting national taxes shall be an estate claim, while Article 37 subparagraph 2 of the same Act provides that "the amount of damages and penalties due to the failure to perform the obligation after the declaration of bankruptcy" shall be subordinate bankruptcy claims. The additional charges and increased additional charges arising from the failure to perform the principal tax claim shall be deemed as having the nature of the amount of damages and penalties due to the failure to perform the obligation. Therefore, the additional charges and increased additional charges arising after the declaration of bankruptcy among the tax claims in this case shall be subordinate bankruptcy claims. However, the defendants claim that the above additional charges and increased additional charges are estate claims as stipulated in Article 38 subparagraph 2 of the former Bankruptcy Act. Thus, they seek confirmation

If the additional dues and increased additional dues constitute estate claims under Article 38 (2) of the former Bankruptcy Act, they are against the constitutional principle of equality, the principle of excessive prohibition, and are in violation of the Constitution.

(b) the relevant regulations;

Article 14 of the former Bankruptcy Act

Article 37 of the former Bankruptcy Act

Article 38 of the former Bankruptcy Act

C. Determination

If the local tax is not paid by the due date, the amount to be collected in addition to the notified tax amount under the National Tax Collection Act or the Local Tax Act, and the increased amount shall be the amount to be collected in addition to the amount to be collected at the time when the payment is not made by the due date after the due date for payment (Article 2 subparag. 5 of the Framework Act on National Taxes, Articles 21 and 22 of the National Tax Collection Act, and Articles 1(1)13 and 27 of the Local Tax Act, and Article 1(1)13 and 27 of the Local Tax Act shall apply mutatis mutandis to the imposition and collection of the local tax (Article 82 of the Local Tax Act), and the additional amount, etc. shall bear the nature of the compensation for delay of the tax liability, as alleged by the plaintiff. However, as long as Article 38 subparag. 2 of the former Bankruptcy Act or the collection of the national tax is clearly defined as a estate claim, the additional amount, etc.

In addition, Article 35(1) of the Framework Act on National Taxes and Article 31 of the Local Tax Act provide that national taxes, local taxes, additional dues, and increased additional dues shall be collected in preference to other claims in order to efficiently secure taxes, which constitute a financial basis for existence of the State or local governments. The bankruptcy procedure does not intend to uniformly repay all debts, but recognizes preferential rights to payment in respect to claims for which rights to preferential payment are recognized under substantive law before bankruptcy proceedings are held. This does not apply to taxation procedures and general compulsory execution procedures. In addition, additional dues and increased additional dues are for the purpose of compelling the performance of tax liability, which is the basic duty under the Constitution, and enhancing the efficiency of tax collection. Thus, in light of the above, Article 38(2) of the former Bankruptcy Act and Article 31 of the Local Tax Act provide that additional dues and increased additional dues shall be collected in preference to other claims, and Article 38(2) of the former Bankruptcy Act and Article 205(2) of the former Bankruptcy Act cannot be deemed as a violation of the principle of prohibition of excess or increase of 260(20.75).265).

3. Conclusion

Therefore, since the wage and salary income tax listed in the attached table Nos. 1 through 3, the value-added tax (No. 10 is terminated by the withdrawal of lawsuit) of 5 or 9, and the resident tax (No. 12 through 14 are finalized by the court of first instance) of 11, which is to be earned after the declaration of bankruptcy, shall constitute estate claims stipulated in Article 38 subparag. 2 of the former Bankruptcy Act, the plaintiff's claim against the defendants shall be dismissed as all of the grounds for appeal. Thus, the judgment of the court of first instance is unfair by concluding this different conclusion, and all of the plaintiff's claims shall be dismissed. It is so decided as per Disposition.