Whether the instant machinery is owned by the Plaintiff’s individual

In light of the lack of materials to prove that the Plaintiff acquired ownership due to purchase in its name, not the Plaintiff’s name, but the successful bidder of the instant machinery from South Korea, it is insufficient to recognize that the instant machinery was owned by the Plaintiff’s individual.

Article 24 of the Framework Act on National Taxes

2018Guhap2298 Objections by Third Parties

Ansan ○

○ Head of tax office

September 20, 2018

October 25, 2018

1. The plaintiff's claim is dismissed.

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

On July 25, 2017, the defendant confirmed that the attachment disposition against the movables listed in the separate sheet No. 1 is invalid.

1. Details of the disposition;

A. A. ○○○ Co., Ltd. (hereinafter referred to as “A.○○”) is a corporation that engages in the business of manufacturing metal products for structural purposes.

B. Value-added tax, wage and salary income tax, corporate tax, etc. payable to the Defendant on or around July 2017

The total of 14 taxes in arrears reached the total of 904,291,820 won.

C. Accordingly, on July 25, 2017, the Defendant: (a) on the building owned by ○○○○○○○-si 593-1, and D (hereinafter “instant factory”) owned by ○○○○-si 593-1, and (b) Dong (hereinafter “instant factory”).

In accordance with Article 24 of the National Tax Collection Act, the movable property listed in the attached list No. 1 (hereinafter referred to as "the machinery of this case") which had been located therein was seized (hereinafter referred to as "the disposition of this case").

D. The statutes related to the disposition of this case are as shown in attached Form 2.

Facts that there is no dispute over recognition, Gap Nos. 10, 15 through 17, Eul No. 1 and 2

each entry, video, or whole pleading of each entry, including branch numbers, hereinafter the same shall apply)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On June 30, 2016, the Plaintiff purchased the instant machinery in the name of Nonparty Nam-○ in the compulsory auction procedure for corporeal movables, and acquired its ownership. On July 23, 2016, the Plaintiff sold the instant machinery to ASEAN in the purchase price of KRW 242,00,000 (including value-added tax) and delivered it on August 31, 2016.

However, ○○○ paid only 130,000,000 won out of the purchase price for business reasons, and was unable to pay the remainder. On November 9, 2016, the rights to the instant machinery and equipment as well as KRW 130,000,000 from the purchase price already paid was waived.

Ultimately, since the instant machinery belongs to the Plaintiff’s ownership, the instant disposition was made against the Plaintiff’s property, a third party, not the Plaintiff’s property, a taxpayer, and thus is null and void.

(b) Fact of recognition;

1) On June 30, 2016, around 09:20 on June 30, 2016, the Plaintiff’s spouse Nonparty ○○ withdrawn KRW 110,000,000 in cash and in his/her own deposit account.

2) On June 30, 2016, South ○○, the Plaintiff’s seat, purchased the instant mechanical devices in KRW 85,460,000 at the auction date of corporeal movables conducted by ○○ District Court ○○○○○ Branch 2015No. 1299.

3) On July 23, 2016, the Plaintiff, a representative director, entered into a contract for the sale of the instant machinery to sell the instant machinery to KRW 242,00,000 (including value-added tax) (hereinafter “instant contract”). The instant contract entered into a contract for the sale of the said machinery. The Plaintiff’s sales of the instant machinery to KRW 242,00,000 (hereinafter “the instant contract”).

The seal of the applicant is affixed to the personal seal, and the financial account of the applicant is written as the deposit account.

The main contents of the instant contract are as follows.

[Attachment]

4) On September 13, 2016, 201, A○○ paid KRW 70,000,000 as the purchase price of the instant mechanical device, and KRW 60,000,000 as the financial account in the name of An○○’s name, respectively.

5) On August 31, 2016, ○○ was handed over the instant machinery from the Plaintiff and installed in the instant factory, and used and profited from the instant machinery while occupying it.

6) On November 10, 2016, the ○○○ entered into a lease agreement with the instant factory to lease it to 200,000,000 won, and the period from November 7, 2016 to 24 months. Cor○○○ occupies the instant factory from around that time, and also occupies and uses the instant mechanical devices.

7) On March 17, 2017, the Co-○○ prepared a written confirmation of ownership to the effect that “○○○” did not pay the remainder by August 31, 2016, and thus the instant sales contract was rescinded. Co-○○○○ drafted a written confirmation of ownership to the effect that “The instant machinery is jointly owned by the internal and ○ industry and to cooperate to the maximum extent possible in giving public notice as a clear method to inform the instant machinery, as it is leased and used from the internal and non-party ○ industry (representative○).”

8) At the time of the Defendant’s seizure of the instant machinery, the instant machinery was posted with a Sticker indicating that the instant machinery is a product of safe-○ and ○○ industry, and thus, it may be subject to criminal punishment at the time of unauthorized Damage and Removal without permission.

Facts without any dispute, Gap's 1, 2, 5 through 8, 13 through 15, Eul's 3, 4, and 7, and the purport of the whole pleadings.

C. Relevant legal principles

In light of the provisions of Article 24 of the National Tax Collection Act, which provides for the requirements for seizure as a disposition on default, the subject of seizure is limited to a taxpayer’s property. Therefore, a disposition of seizure on a third party’s property, other than a taxpayer, is null and void as the content of the disposition cannot be legally realized (see, e.g., Supreme Court Decision 2010Du4612, Apr. 12, 2012).

Meanwhile, in an administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the confirmation thereof, the administrative disposition is liable to assert and prove the grounds for invalidity (see Supreme Court Decision 2009Du3460, May 13, 2010).

D. Determination

In full view of the following circumstances, it is insufficient to acknowledge that the Plaintiff’s evidence alone was the ownership of the Plaintiff, not the ownership of the Plaintiff, but the ownership of the Plaintiff’s individual, based on the following facts: (a) the above facts of recognition, the evidence as mentioned above, the evidence, and the evidence as stated in Gap’s evidence Nos. 3, 4, 9, 11 through 13, were added to the purport of the entire pleadings; and (b) there is no other evidence to acknowledge it.

1) Even if ○○○○, the Plaintiff’s spouse, withdrawn KRW 110,00,00 from his/her own deposit account on June 30, 2016 and ○○, the Plaintiff’s seat, purchased the instant machinery through a successful bid in the auction procedure, it is insufficient to prove that the purchase fund was the Plaintiff, and insofar as the successful bidder is not the Plaintiff, such fact alone cannot be deemed as the Plaintiff’s owner of the instant machinery.

2) Furthermore, there is also a lack of evidence to support the fact that the Plaintiff acquired ownership by purchasing the instant machinery from South ○○ to its own name, not the Plaintiff’s internal name.

3) On July 23, 2016, ○○ entered into the instant contract with Ansan to purchase the instant machinery and equipment, and some sales proceeds were remitted to the financial account in the name of ○○.

4) Although the instant contract bears a seal affixed to the Plaintiff’s individual seal, rather than the seal affixed to the Plaintiff’s corporate seal, and the Plaintiff’s individual deposit account is indicated in the deposit account, insofar as the seller’s name is safe and a part of the purchase-price was paid to the financial account in the name of ○○○, such circumstance alone cannot be deemed as having been owned by the Plaintiff at the time of the instant disposition.

5) On August 31, 2016, the ○○ delivered the instant mechanical device, and thereafter, on November 10, 2016, he/she allowed the Plaintiff to use and profit from the instant mechanical device while leasing the instant mechanical device to ○○○○○○. The Plaintiff appears to have known that ○○○ was using the instant mechanical device in around March 17, 2017, and Nonparty Kim○○, who was appointed as the representative director of ○○○ on November 25, 2016, appears to have never known all of the matters related to the ownership alleged by the Plaintiff until the instant disposition was taken. Therefore, it is not clear whether the waiver of the right to the instant mechanical device by ○○○ was valid.

6) Rather, Kim○-○ stated that at the time of the instant disposition, a public official affiliated with the Defendant had ownership in the instant mechanical device, and did not raise any objection at the site of executing the instant disposition.

7) The purport of "the content of the Stick affixed to the instant mechanical device is "the substance of the instant mechanical device ○○ and the goods of the ○○ Industry" is contrary to the Plaintiff’s assertion that it is owned by the Plaintiff.

8) The Plaintiff appears to have never gone through the third party’s claim of ownership under Article 50 of the National Tax Collection Act and Article 55 of the Enforcement Decree thereof after the instant disposition was filed.

3. Conclusion

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

(c)