Suwon District Court 2013Gaso599 (2013.04.04)

If a refund is requested within five years from the date of commencement of the custody, it shall not meet the requirements for reversion of the amount in custody to the National Treasury.

In the event of a claim for refund within five years from the date of commencement of the custody, the existence of the obligation to pay the balance of the sale is recognized and the intention of payment is expressed, so the statute of limitations of the obligation to pay the balance of the sale is suspended.

Article 84 (Deposit of Distributed Money) of the National Tax Collection Act

2013Na18353 Money in custody

AA

Korea

Suwon District Court 2013Gaso599 (O4. 04)

December 05, 2013

December 19, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 18,00,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. The plaintiff is a corporation in the process of liquidation, and the plaintiff has completed the registration of the completion of liquidation on December 8, 2004, but has completed it.

On December 26, 2012, the registration of the completion of liquidation was cancelled on the ground that the liquidation work related to the claim is not completed.

B. In order to collect the Plaintiff’s amount of national taxes in arrears, the △△ Tax Director requested the Korea Asset Management Corporation to sell and distribute the sale price on a public sale basis with respect to 00-00 ○○○○○-Eup, ○○○, 00, 00 m2 and 1,561 m2 and 84 m2 of a road (hereinafter “the instant real estate”).

C. On September 12, 2006, the Korea Asset Management Corporation commenced the auction procedure of the instant real estate (hereinafter in this case’s auction procedure), and allocated KRW 000,000,000,000 from the sale price of the instant real estate on the distribution date executed as of September 12, 2006, to the public auction administration cost, KRW 00,000,000, 000, 000, 000,000, △△△△△ branch, respectively.

D. The head of △△ District Tax Office: 00,000 won remaining after allocating the sales price as above (hereinafter in this case

As of October 17, 2006, the Plaintiff was deposited in the Bank of Korea in accordance with Article 84 of the National Tax Collection Act as of October 17, 2006, when 30 days have passed after the date of distribution.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5, purport of whole pleadings

2. Determination as to the cause of action

Article 81(3) of the National Tax Collection Act provides that the proceeds from the sale of attached property shall be paid to the delinquent taxpayer if any balance remains after allocating the proceeds from the sale thereof pursuant to Article 81(1) and (2) of the same Act, such as the delinquent amount in arrears. As such, the Defendant is liable to pay the delinquent taxpayer the proceeds from the public sale of the instant real property owned by the Plaintiff, and the proceeds from the sale are distributed to 00,000 won, as seen earlier. As such, the Defendant is liable to pay to the Plaintiff, who is the delinquent taxpayer, 1) 00,000 won, and damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from January 8, 2013

3. Defendant’s assertion and judgment

A. The defendant's argument

1) Within five years from October 17, 2006, the Defendant commenced the custody of the remaining proceeds of the sale of this case, and the sale of this case was reverted to the National Treasury pursuant to Article 1 of the Government Deposit Act (hereinafter the Government Deposit Act), as the Plaintiff did not make a claim for refund within five years from October 17, 2006, and the Plaintiff’s claim for the remaining proceeds of sale of this case was extinguished as a reflective effect.

2) The claim for the payment of the remainder of the sale of this case is subject to the five-year extinctive prescription as a right under the public law. As such, the statute of limitations expired since the Plaintiff did not claim the payment of the remainder of the sale of this case within five years from the date on which

3) In accordance with Article 1 of the Government Deposit Act and Article 20 of the same Rule, and Article 175 (7) of the Regulations on the Management of National Tax Collection, the Defendant reverted the proceeds of the sale of this case to the National Treasury as of January 7, 2013. The above reversion measures to the National Treasury cannot be effective until the cancellation by legitimate procedures due to its fairness due to an administrative disposition. Thus, in order to receive the proceeds of the sale of this case, the Plaintiff must first dispute the validity of the above disposition to revert the National Treasury, which is an administrative disposition,

B. Determination

1) As to the assertion of reversion to the National Treasury under the Government Custody Act

According to the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011), the head of a tax office shall deposit money distributed to a delinquent taxpayer in the Bank of Korea (Article 84(3) and (1)). According to the Government Deposit Act, where a refund claim is not filed within five years from the date after the date after the date when the custody was kept in the case of the Government Deposit with no deadline for cancellation of the obligation to keep in custody (Article 1). The fact that the Defendant deposited the money in the Bank of Korea and opened the custody as of October 17, 2006, to the Plaintiff who is a delinquent taxpayer after the public auction procedure of this case.

However, in full view of the purport of the aforementioned evidence, △△△ Tax Office sent a government custody notice (Evidence 3) demanding the Plaintiff to receive the remaining proceeds of the sale of this case on or around January 201, 201; 2) the Plaintiff demanded payment of the remaining proceeds of the sale of this case by making phone to △△△ in charge of △△ Tax Office immediately upon receipt of the above notice; 4) the Plaintiff refused payment of the remaining proceeds of the sale of this case; 4) the Plaintiff was unable to open an account in the name of the Plaintiff at the time due to the completion of liquidation registration in its corporate register; 5) the Plaintiff’s opening of an account in the name of the Plaintiff and again requested payment of the remaining proceeds of the sale of this case to the National Treasury after cancelling the registration of the completion of liquidation on the corporate register as of December 26, 2012; however, the Defendant rejected the Defendant’s claim on the grounds that the remaining proceeds of sale of this case was reverted to the National Treasury after the lapse of five years from the date of custody; and thus, the Plaintiff’s claim on the date of the sale of this case was based on the premise.

2) As to the assertion of extinctive prescription

On the other hand, the right to the State as the right to payment of money is extinguished by prescription if it is not exercised for five years (see Article 96 of the former Budget and Accounts Act and Article 96 of the National Finance Act). In full view of the purport of the entire pleadings, the distribution date of the sales balance to the Plaintiff is recognized as October 16, 2006. Thus, the claim for the payment of the sales balance of this case was occurred on the date of the first sale, and it is evident that the Plaintiff filed the lawsuit in this case only on January 7, 2013 after the five-year prescription has expired.

However, in full view of the purport of the argument in Gap's evidence No. 3, the defendant, on January 201, 201, before five years have passed since the date of the delivery of the above sale balance, kept 23,710,109 won in the balance of the distribution amount generated in the public sale procedure of this case to the plaintiff in the △△ Tax Office account pursuant to Article 84 of the National Tax Collection Act. It is recognized that the defendant sent the plaintiff a notice of the receipt of the Government's custody money (Evidence No. 3) stating that the payment of the distribution amount would be received within a prompt period of time. The defendant's delivery of such a notice is recognized as the existence of the defendant's obligation to pay the remainder of the sale of this case and expressed his intent to pay it to the plaintiff, and thus, the plaintiff's claim for the payment of the remainder of the sale

3) As to the assertion of fairness in administrative disposition

In full view of the purport of the entire pleadings in the statement No. 2 of the evidence No. 2 of this case, the defendant is recognized as having taken measures to vest 00,000 won, including 23,710,109 won in the sale of this case and 00,000 won in the interest thereon, to be paid to the plaintiff as of January 7, 2013, including 23,710,109 won in the sale of this case, and 20,000 won in the sale of this case.

However, the term "administrative disposition" is, in principle, an act of an administrative agency's public act that directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations under the laws and regulations or giving rise to other legal effects. In other words, the following circumstances acknowledged by the above facts of recognition and the evidence mentioned above are as follows: ① a defendant's above-mentioned administrative disposition on the balance of the sale of this case was made in a simple internal manner, and it is not notified that there was separate administrative disposition from the plaintiff; ② Article 175 (7) of the National Tax Collection Act, which is the provision on the basis of the above administrative disposition belonging to the National Treasury, provides that it is difficult to consider that the ground provision for administrative disposition should be established separately from the internal administrative disposition, and ③ it is difficult to accept the plaintiff's claim that the refund should be reverted to the National Treasury within 5 years from the date of keeping the above administrative disposition, and it is difficult to view that the plaintiff's claim should be reverted to the National Treasury within 10 years from the expiration of 10 years from the above administrative disposition.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.