If a preliminary return of capital gains tax was notified, the statutory date is the preliminary return date.

There was no omission or error in the preliminary return itself, but there was no omission or error in the details of the preliminary return, and the notification of a lump sum payment without payment on several proposals within the same taxable period after the end of the taxable period, and the transfer loss incurred from the transfer of other real estate is deducted from the transfer income amount, and thereby the tax base and tax amount are changed, the date

2014 Gohap 5155 Demurrer

AA Cooperatives

Korea

September 26, 2014

October 17, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Of the dividend table prepared on April 25, 2014 by the ○○ District Court, the amount of KRW 286,506,100 to the defendant shall be deleted, and the amount of KRW 200,095,010 to the plaintiff shall be corrected to KRW 486,601,110.

1. Basic facts

A. 1) When ○○○○○○-dong, ○○-dong, 115-1 Forest land and 423.9 square meters of movable property, such as 115-2 forest land and 115-2 forest land and 9,861.5 square meters (hereinafter referred to as “real property subject to the transfer of this case”) owned by ○○ City Development Corporation on May 14, 2010, ○○○○○ City Development Corporation, on July 29, 2010, ○○○○○○ (hereinafter referred to as “the preliminary return of this case”) made a preliminary return of capital gains tax (hereinafter referred to as “the preliminary return of this case”) with the same content as the “preliminary return of transfer income tax on the transfer of the real property subject to the transfer of this case.”

2) However, on January 4, 2012, the Defendant sent a notice of non-payment of the transfer income tax of this case (hereinafter “instant non-payment notice”) to Kim○○○ on the same day as the transfer income tax of this case. At the time of the instant non-payment notice, the Defendant issued a notice of the same content as the following statement to Kim○○○ by deducting KRW 2,159,69,000 from the transfer income tax of this case by deducting KRW 2,159,69 from the transfer income tax of this case, the sum of transfer losses incurred while Kim○○ transferred other real estate within the same taxable period (2010).

(Omission of List)

B. Meanwhile, on September 5, 201, the Plaintiff granted a loan of KRW 539,00,000 to Kim○○ on or around September 5, 201. On September 6, 2011, the Plaintiff completed the registration of creation of a neighboring mortgage (hereinafter referred to as the “mortgage of this case”) in the Plaintiff’s name with the maximum debt amount of KRW 700,70,000,00,000 on the ○○○○○○○○○○-gun, ○○○○○○○○○○, a forest of KRW 681-4,749, and a forest of KRW 681-6,762,00.

C. On April 16, 2012, the Defendant completed the attachment registration as to ○○○○○○-Gun ○○○○○○-4 Forest land 9,749 square meters on April 16, 201 with regard to the instant transfer income tax, etc. as a claim claim, and as to 681-6 forest land 11,762 square meters on November 23, 2012, respectively.

D. After that, regarding the above ○○○○○○○○-gun ○○○○○○○○○-gun 681-4, and 681-6 land, a voluntary auction procedure for real estate (hereinafter referred to as “instant auction procedure”) was commenced by ○○ District Court ○○○○○○○○○○ (hereinafter referred to as “instant auction procedure”). On June 17, 2013, the Defendant submitted a written request for delivery stating “the statutory due date of the instant transfer income tax on January 4, 2012” at the instant auction procedure, and submitted a new written request for delivery amended on March 26, 2014 to “the statutory due date on July 29, 2010.”

E. On April 25, 2014, the ○ District Court prepared a distribution schedule that distributes KRW 286,506,100 to the Defendant (second order) and KRW 200,095,010 to the Plaintiff (third order) on the date of distribution of the instant auction procedure (hereinafter “instant distribution schedule”). The Plaintiff appeared on the said date of distribution, stated an objection against the total amount of dividends to the Defendant, and filed the instant lawsuit on May 1, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 2-1, Gap evidence 3-5, Eul evidence 1-2, Eul evidence 1-2, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

In the instant non-payment notice, the Defendant deducted transfer loss from the transfer income amount reported by Kim ○○, thereby changing the transfer income tax base and tax amount. This constitutes a case where taxing authorities corrected the tax base and tax amount of capital gains due to omissions or errors in the preliminary return, and thus, this constitutes a correction disposition for the instant preliminary return, not

Therefore, pursuant to the proviso of Article 35(1)3 (b) of the Framework Act on National Taxes, the statutory due date of the transfer income tax of this case is January 4, 2012, which is the date of sending the notice of non-payment of this case. Thus, on September 6, 201, which is the date of establishment of the instant right to collateral security, the Plaintiff’s secured claim of the instant right to collateral security takes precedence over the Defendant’s claim of the transfer income tax of this case, so the instant dividend table should be corrected as stated in the purport of the claim.

B. Determination

1) According to Article 35(1) of the Framework Act on National Taxes, national taxes, etc. are collected in preference to other claims, but if the establishment registration of a mortgage has been completed prior to the statutory due date of the national tax, national taxes shall not take precedence over claims secured by the mortgage, and the "legal due date of national taxes" shall be the national taxes for which the liability to pay taxes is determined by the return

With respect to the reported amount of value-added tax (including value-added tax), the date of filing the tax return (Article 22(1)3 (b) of the Framework Act on National Taxes), where the Government determines, revises, or occasional assessment, the date of sending the relevant tax notice (Article 22(1) of the Framework Act on National Taxes). Meanwhile, pursuant to Article 10-2 of the Enforcement Decree of the Framework Act on National Taxes and Article 22(1) of the Enforcement Decree of the Framework Act on National Taxes, capital gains tax shall be determined at the time of filing the tax base and amount of the relevant national tax with the Government (Article 10-2): Provided, That

According to the above relevant Acts and subordinate statutes and the above facts, the statutory due date of the transfer income tax of this case shall be July 29, 2010, for which Kim○-○ made a preliminary return of transfer income tax pursuant to Article 35(1)3(a) of the Framework Act on National Taxes.

2) Meanwhile, when the Defendant issued a notice of non-payment in this case, deducted the total amount of KRW 2,159,69,690 from the transfer income amount that occurred in the same taxable period in the scheduled return by Kim○-○, and thereby, the transfer income tax base and the tax amount that were entered in the scheduled return in this case are changed. As such, whether the notice of non-payment in this case constitutes “where the government makes a decision, rectification, or occasional assessment” under Article 35(1)3 (b) of the

Article 105 of the Income Tax Act provides that a person who transfers real estate shall file a return on the tax base of transfer income ("preliminary return") with the head of the competent tax office within two months from the end of the month in which the transfer date belongs, and Article 114 (2) of the same Act provides that if there are omissions or errors in the details reported by the person who filed the preliminary return, the head of competent tax office, etc. shall correct and correct the tax base of transfer income and the amount of tax, and Article 102 (2) of the same Act provides that in calculating the amount of transfer income, if there is any assets which

According to the above provisions, if there are omissions or errors in the details of the taxpayer's preliminary return, if the tax authority changed the transfer income tax base and tax amount pursuant to Article 114 (2) of the Income Tax Act and made a disposition of correction, it shall be deemed that the tax base and tax amount under Article 114 (1) 3 (b) of the Framework Act on National Taxes constitute "where the government determines, revises, or occasionally imposed a tax base and tax amount." However, as in this case, there was no omission or error in the content of the preliminary return in this case, and the Defendant issued a notice of comprehensive payment without delay on several preliminary returns within the same taxable period after the end of the taxable period, and only when the transfer loss incurred from the transfer of other real estate is deducted from the transfer income tax amount of the transfer income tax of this case, it shall not be deemed that the preliminary return of this case constitutes a case where a corrective disposition under Article 114 (2) of the Income Tax Act is made, and therefore, the date

3) Therefore, the statutory due date of the transfer income tax of this case shall be deemed as July 29, 2010, which is the preliminary return date. Thus, the transfer income tax of this case takes precedence over the secured claim of the right to collateral security under the name of the plaintiff, and the distribution schedule prepared by this court to distribute the transfer income tax amount to the defendant prior to the plaintiff

3. Conclusion

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