The request of the tax authority for issuance is not a public statement of opinion.

A request by a tax authority for issuance is not a public statement of opinion, and thus is not a violation of the principle of good faith.

2016 Gohap546413 Compensation for damages

OO

Korea

2017.04.28

2017.06.23

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

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The primary claim: The defendant shall pay to the plaintiff 5% interest per annum from OO.O.O.O. to the service date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

Preliminary claim: The defendant shall pay to the plaintiff 5% interest per annum from OO.O.O.O. to the service date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. 1) OO.O.O.O. AA. BB owned by O. AA, the local Land Tribunal rendered an expropriation ruling on three parcels of land and its ground, including OO.O.O.O., O.O., and the BB completed the registration of ownership transfer for the above real estate.

2) While AA made capital gains on the above real estate, it did not pay the capital gains tax (hereinafter “the capital gains tax of this case”) although AA made capital gains tax on the said real estate.

B. AA, in addition to the above expropriated real estate, (1) OO also OOOOOOOOOOOOO.

OOOO-O-O-use land (hereinafter referred to as "the land in this case"), such as OO-O-O-owned land (hereinafter referred to as "the land in this case") and OO-O-O-O-use land in this case (hereinafter referred to as "the land in this case"), owned the land in this case, "the land in this case" and "the land in this case" in the above (1) through (3).

C. 1) The attachment disposition on each of the instant land was rendered byCC OO.O.O.O. As to each of the instant land.

2) Meanwhile, each of the instant lands was established on each of the instant lands, including OO.O.O.O.O.O.O.O., debtor AA, mortgagee DD, maximum debt amount, maximum debt amount, OO.O.O.O.O., debtor AA, and mortgagee DD. However, EE completed additional registration of each of the instant mortgages transfer claims on the grounds of transfer of confirmed claims.

D. 1) The instant land No. 1 was put up for a public auction of OO.O.O.O.O.O.O. In order to file a claim for delivery with OO.O.O. of the instant transfer income tax, including OO.O., and at the time, CC did not enter the statutory due date of the instant transfer income tax on July 1, 2005.

2) The Korea Asset Management Corporation distributed OO.O.O.O. 1 of the sales price of the instant land to EE. The instant transfer income tax was distributed after the statutory due date was later than the establishment date of the said right to collateral security. Accordingly, CCT did not have been allocated the instant transfer income tax.

E. 1) The instant land No. 2 was put up for a public auction of OO.O.O.O.O.O. In order to file a claim for delivery with OO.O.O. of the instant transfer income tax, including OO.O., and at the time, CC did not enter the statutory due date of the instant transfer income tax on July 1, 2005.

2) The Korea Asset Management Corporation distributed OO.O.O.O. 2 of the sales price of the instant land to EE among the OO.O. 2, and since the statutory date of the instant transfer income tax was later than the establishment date of the said right to collateral security, CC did not have been allocated the instant transfer income tax.

F. 1) The Plaintiff and OO.O.O. EE and “EE” have satisfied the Plaintiff’s repayment of KRW O.O.O.O.O.O.O.O.O.E. In the event that EE is unable to repay KRW O.O.O.O., EE drafted a loan that the Plaintiff will transfer the right to collateral security established on the instant land 2 and 3 and the secured claim O.O.O.O.O. to the Plaintiff.

"2) After the date, the Plaintiff acquired claims owned by EE.O.O.O.O. EE and the Plaintiff. As to the right to collateral security that OO.O.O.O.E. has decided to transfer to the Plaintiff when it is unable to repay the loan funds, it confirms that the amount of credit confirmed by C.O.O.O.O.O., and that the amount of credit confirmed by C.O.E was fully paid.O., the first priority (legal due date) over C.O.O., which was acquired by the prior owner of C.O.O., was not charged with E.E. for any of the following reasons. This agreement was drafted to the effect that the additional registration prior to the right to collateral security takes effect at the same time as E.O.O., etc., the Plaintiff completed the instant transfer income tax on 3O.O.O.’s additional registration on the land of this case. The Plaintiff completed the instant transfer income tax on the 3OO.O.O.’s transfer income tax on the land of this case.

2) The Korea Asset Management Corporation distributed OO members out of the sales price of the third land in this case to the OO members, and since the Plaintiff’s right to collateral security was established after the statutory date of the transfer income tax in this case, the Plaintiff did not have been distributed.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 13, 15, 16, Eul evidence 1 through 9, and the purport of the whole pleadings

2. Judgment as to the main claim

(a) The primary cause of the claim;

The statutory date of the transfer income tax of this case is July 1, 2005, and this is established after June 13, 2006, which is the last day of each right to collateral security of the land No. 3 of this case. Thus, since the defendant's OO members distributed from the land No. 3 of this case did not have legal grounds, the defendant should return the above amount with unjust enrichment to the plaintiff.

(b) Related statutes;

Article 35 of the Framework Act on National Taxes

(a) National taxes, additional dues or disposition fees for arrears shall be collected in preference to other public imposts and claims: Provided, That this shall not apply to public imposts and other claims falling under any of the following subparagraphs:

3. In the sale of an asset for which the fact that the establishment of the right of lease on deposit basis, the pledge right or the mortgage has been registered before the date falling under any of the following items (hereinafter referred to as "legal date") has been proved under the conditions as prescribed by the Presidential Decree, if the national tax or additional dues (excluding the national tax and the additional dues imposed on the asset) is collected from the proceeds of sale, the obligation secured by the right

(a) For the returned tax amount on which the duty of payment is determined by the tax base and return of tax amount, the date of report;

나. 과세표준과 세액을 정부가 결정��경정 또는 수시부과결정하는 경우에 고지한 당해 세액에 대하여는 그 납세고지서의 발송일

C. Determination

1) We examine the facts that the defendant filed a request for delivery on July 1, 2005 with the statutory due date stated in the public sale procedure of the land Nos. 1 and 2 of this case. However, in full view of the overall purport of the arguments and videos Nos. 1, 3, 4, 6 through 8 of this case, AA made a report of the transfer income tax of this case on May 31, 2005 in the integrated national tax computer network, and the public official in charge entered it on June 1, 2005. AA made a tax base return of global income tax other than the transfer income tax of this case on May 31, 2005. The plaintiff's request for a final return of transfer income tax of this case to AA on July 8, 2005 is not sufficient to recognize that the transfer income tax return of this case was made on May 31, 2005.

2) Of the materials submitted by the Defendant, the Plaintiff asserts that (1) there was no signature or seal of the AA and the tax agent on the tax base of transfer income return and the statement of payment (Evidence (Evidence (Evidence (Evidence (No. (1)) related to the documents submitted by the Defendant, and that if the AA filed a final return, there was no indication that the transfer income tax was reduced or exempted on the land, etc. for public service pursuant to Article 77 of the Restriction of Special Taxation Act, or that there was no indication that it was reduced or exempted, and (2) if the Defendant filed a voluntary report on May 31, 2005 in relation to the "statement on the transfer income tax return" (Evidence (Evidence (Evidence (Evidence (Evidence (No. 2) sent by the Defendant to the AA on July 7, 2005), the Defendant sent a written additional decision following the non-payment faith, not on July 8, 2005.

However, the following circumstances, i.e., (1) the return of tax base of transfer income and the statement of payment submitted by the Defendant, which can be recognized by comprehensively taking account of the aforementioned evidence and the purport of the entire pleadings, were printed out the data entered in the integrated national tax computer network, and there is no signature or seal of the AA or the tax agent. Since 2005, considerable time has passed since 2005, there is a possibility that the Defendant does not keep the accompanying documents at the time of the report. According to Article 133 of the Restriction of Special Taxation Act, the comprehensive limit of capital gains tax reduction or exemption under the above Act was KRW 100,000,000 for each taxable period, and the AA was reduced or exempted for 100,000,000 won, which is the amount equivalent to the comprehensive limit of capital gains tax reduction or exemption. (2) The Plaintiff’s assertion that the CA sent to the AA on July 8, 2005, not the Plaintiff’s assertion due to the failure of the report.

3. Judgment on the conjunctive claim

(a) Preliminary cause of claim;

Even if the statutory due date of the transfer income tax of this case was May 31, 2005, the Defendant had already requested the delivery of the transfer income tax of this case on July 1, 2005 with the statutory due date specified in the public sale procedure for the land Nos. 1 and 2. The Plaintiff believed such Defendant’s behavior and acquired the mortgage claim of the EEA against the EEA in lieu of paying the principal and interest on the loan to the EE. The Defendant’s act violates the principle of trust and good faith or the principle of protecting trust. The amount of damages suffered by the Plaintiff is the OOO [OO - the amount of the transfer income tax of this case remaining at the time of the public sale of the land No. 3 - 1 and 2 of this case, which was the amount of dividends paid preferentially by the CCOO - the amount of the principal and interest on the land of this case to be paid preferentially to the EE.

B. Determination

In general, the requirements for applying the principle of trust and good faith or the principle of trust protection to the tax authority's act in the tax law relations are as follows: first, the tax authority must state the public opinion that is the object of trust to the taxpayer; second, the taxpayer's expression of opinion is justifiable; third, the taxpayer must trust and trust his opinion; fourth, the tax authority's disposition contrary to the above opinion list should result in infringing the taxpayer's interest by making the disposition contrary to the above opinion list (see Supreme Court Decision 2003Da18401, May 26, 2006). In light of the above legal principles, the first and second land public sale procedure of this case, even if the tax authority made a request for delivery by falsely stating the statutory date on July 1, 2005, it cannot be deemed as a public opinion of the tax authority; second, the taxpayer's right to collect taxes cannot be deemed as a waiver of the taxpayer's right to collect taxes; and thus, it cannot be deemed that the Plaintiff violated the principle of trust and good faith to the taxpayer.

In addition, even if examining the losses incurred by the Plaintiff, it is presumed that the transfer of another claim to the obligee in relation to the repayment of the obligation would be presumed to have been transferred by means of a security for the repayment of obligation or a repayment, barring special circumstances, and it does not mean that the transfer of the claim in such case would substitute for the repayment of the obligation. As such, the immediate termination of the original claim cannot be deemed to have been caused by the transfer of the claim, and the obligor is discharged from the obligation only when the obligee received the repayment of the claim (see Supreme Court Decision 2012Da4098, May 9, 2013). Since there is no evidence to prove that the Plaintiff acquired the claim in relation to the EE in lieu of the repayment of the claim in relation to the EE, it is difficult to view that the Plaintiff acquired the claim in relation to the EE in lieu of the repayment of the claim in relation to the EE, and it does not seem that the Plaintiff suffered any losses.

4. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed as it is without merit. It is so decided as per Disposition.