Legal date of additional dues

If the amount of the principal tax is not paid by the due date notified in the notice of payment of the principal tax according to the notice of payment, the additional dues are naturally generated without a separate fixed procedure. Therefore, the statutory due date of the additional dues shall be deemed to be the time when the payment period notified

Article 35 of the Framework Act on National Taxes

1. The plaintiff's primary claim against the defendants is dismissed.

2. The plaintiff shall pay 154,029,850 won to the defendant Republic of Korea, 16,929,849 won to the defendant ○○○○○○, and 5% per annum from November 12, 2004 to January 30, 2007, and 20% per annum from the next day to the day of full payment.

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 2 can be provisionally executed.

The primary purport of the claim is to the plaintiff. The defendant Republic of Korea shall pay 78,631,879 won, 92,907,598 won to the defendant ○○○ City, and 5% per annum from November 12, 2004 to the final delivery date of a copy of the application for the purport of the claim of this case and the modification of the cause of this case, and 20% per annum from the following day to the day of full payment.

Preliminary claims: It is as stated in paragraph (2) of this Article.

1. Basic facts

A. The ○○○○○○, Inc. (hereinafter referred to as “○○○○○,”) is an owner of 126 units or 513 units among ○○○○○○ ○○ ○ ○ ○ 905-22, 23 large 3,977 square meters underground, five floors underground above the 31st floor above the ground, and ○○○ ○○ ○○ ○○ (hereinafter referred to as “instant building”).

B. Distribution details of the instant building 126

(1) On August 23, 200, with respect to 126 of the instant building, the registration of the establishment of a neighboring mortgage was completed under the name of ○○○○○○○, a stock company, upon the registration of the establishment of a neighboring mortgage, filed an application for an auction of real estate rental on the above 126 units of ○○ District Court 2002 ○○○○, 5061, 2002 ○○○○, 11028, and 2002 16948 (combined), and the procedure was commenced.

(2) On December 2, 1999, the statutory due date of ○○○○○○○○○○ on December 2, 1999, the value-added tax was deferred until August 31, 200, and the principal tax, which was deferred until September 30, 200, plus KRW 236,691,00, and the principal tax, which was deferred until September 30, 200, plus KRW 473,384,630, and the amount of the principal tax, which was deferred until August 31, 200, plus KRW 250,893,630, 630, and the amount of the principal tax to be distributed until the time limit of 197, 207, 30,89, 300, 49, 209, 199, 30, 49, 209, 398, 200, 394, 196, etc.

(3) According to the legal due date of June 10, 200 (AB No. 2) (the actual due date appears to be June 8, 200), Defendant 2 appears to have obtained KRW 9,268.90 on June 30, 200 as well as additional 5,134,260 on May 12, 200 as well as KRW 136,628,30 on May 25, 200 as well as KRW 200 on the legal due date of delivery of KRW 200, KRW 208, KRW 200 on the legal due date of payment, KRW 20, KRW 208, KRW 200 on the legal due date of payment, KRW 200 on the legal due date of acquisition tax of KRW 114,726,00 on the legal due date of payment, KRW 20,000 on the legal due date of payment, KRW 20,714,200 on the legal due date of payment

C. Distribution details of the instant building 513

(1) On June 21, 200, 200, ○○○○ obtained a loan of KRW 500,000,000 from ○○ Bank (hereinafter “○○ Bank”) and completed the registration of creation of a neighboring mortgage of KRW 350,00,000 to ○○ Bank with respect to subparagraph 513 of the instant building. On March 29, 2001, the Plaintiff acquired the above loan claims and the above right to collateral security from ○○ Bank pursuant to Article 4 of the Act on the Efficient Disposal of Non-Performing Assets, etc. of Financial Institutions and the Establishment of ○○○○○○ Corporation, and completed the additional registration on April 30, 201 with respect to the instant building on October 15, 2003 by the Plaintiff’s voluntary application for auction.

(2) Defendant Republic of Korea requested ○○○○○’s statutory due date on December 2, 199, and 154,029,850 won for the principal tax of occasional value-added tax in 1999, August 31, 200, as well as additional dues 13,794,830 won for the principal tax of value-added tax, and the statutory due date on July 25, 2000, September 30, 1999, KRW 102,494,840 for the principal tax of value-added tax for the second period and additional dues until the demand for distribution after the due date for payment.

(3) Defendant ○○○○○○○○○ on June 10, 200, the statutory deadline for payment of acquisition tax of KRW 9,268,90 on July 10, 200, as well as additional dues of KRW 6,246,360 on this, the statutory deadline for payment of KRW 119,341,910 on May 12, 2000, and the statutory deadline for payment of KRW 125,00 on May 25, 200, as well as additional dues of KRW 12,88,90 on this, and the statutory deadline for payment of KRW 125,00 on August 10, 200, as well as additional dues of KRW 66,250 on this, KRW 38,280 on real estate, KRW 130 on February 10, 200 on the statutory deadline for payment, and KRW 36,1306,307,297.

(4) The Plaintiff, who is the first secured mortgage, demanded the distribution of KRW 314,062,62,620, which is a sum of KRW 314,62,62,620, by settling the secured debt of the said secured mortgage as principal and interest KRW 162,465.

(5) After determining the amount to be actually distributed on November 11, 2004, which is the date of distribution, the above court completed the distribution schedule in order of the first priority prior to the date of establishment of the plaintiff's right to collateral security with the amount to be distributed as KRW 402,161,871, and the first priority prior to the date of establishment of the plaintiff's right to collateral security at ○○○ Office, which is the seizure authority, with the Defendant Republic of Korea who is the seizure authority at the second priority of KRW 5,145,670, and the second priority of KRW 154,029,850, and the third priority of the principal tax on occasional amount of value-added tax on June 10, 199, with the Defendant ○○ City, the delivery authority at the third priority of the principal tax on real estate acquisition tax on May 12, 200, and KRW 9,268,910,90,914,710,6416, each of the remainder dividends to the plaintiff.

D. The Plaintiff’s unpaid principal and interest at KRW 314,062,62,620, deducted KRW 101,486,641 as above, and KRW 212,575,979 would remain if the Plaintiff deducted the said dividends from KRW 101,46,641. Thereafter, at the auction procedure for the instant building 401 on December 3, 2004, the Plaintiff received dividends of KRW 42,160,458 out of the total amount of the outstanding principal and interest at the time of the auction procedure for the instant building 401, and eventually, the principal and interest that the Plaintiff had not paid in connection with the auction procedure for the building 513 (=213,120,157 won – KRW 42,160,458).

[Reasons for Recognition] Unsatisfy, Gap evidence 1-2, Gap evidence 2-2, Eul evidence 5-1, 2-6, Gap evidence 7-1, 2-7, Gap evidence 8-1, 2-3, Eul evidence 1-2, Eul evidence 3, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 3-2, Eul evidence 3-2, Eul evidence 3-2, Eul evidence 4, the purport of the whole pleadings

2. The plaintiff's assertion

A. Although Defendant Republic of Korea received dividends of KRW 575,897,470 from the auction procedure for the instant building 126, and the principal tax for occasional amount of value-added tax in December 2, 1999, which was December 2, 1999, was fully extinguished, Defendant Republic of Korea demanded a second delivery of KRW 154,029,850 as the above value-added tax for occasional amount of value-added tax in 199 at the auction procedure for the instant building 513, and received double dividends.

B. In the auction procedure for the instant building 12,340,878 won, Defendant ○○○○ received dividends from KRW 112,340,878 in the auction procedure for the instant building 126, and received only KRW 48,592,112 won as of May 12, 2000 for the acquisition tax on real estate, which was the date of May 12, 2000, Defendant 141,49,710 won as of June 10, 200 for requesting a re-delivery of the acquisition tax, etc. on real estate as of June 10, 200, thereby receiving dividends from KRW 92,907,598 (=141,49,710 won - 48,592,112).

C. The Plaintiff is obligated to pay 170,959,699 won, which was not repaid by the Plaintiff in the auction procedure against the Plaintiff No. 513, and the Defendants are obligated to return unjust enrichment to the Plaintiff, given that the amount of double dividend was unjust enrichment within the above amount. Therefore, Defendant ○○ City is obligated to pay 92,907,598 won, which is a third-class dividend holder, as a second-class dividend holder, and Defendant ○○ City is obligated to pay 78,052,101 won (i.e., KRW 170,959,69 - KRW 92,907,599 - KRW 92,97,598) as a second-class dividend holder (i.e., KRW 154,029,850, Defendant ○○ City, a second-class dividend holder, and Defendant 16,929,959,909 won).

3. Determination

A. Whether to pay double dividends

(1) Defendant Republic of Korea

(A) The additional dues or increased additional dues to be imposed under Articles 21 and 22 of the National Tax Collection Act on the ground that the tax amount collected by a withholding agent fails to be paid by the due date, are naturally incurred under the above provisions without due process for establishing additional dues by the tax authorities, and the amount thereof is also finalized. Thus, it is reasonable to deem that the statutory due date is also when applying by analogy of the proviso of Article 35(1)3(c) of the Framework Act on National Taxes (see, e.g., Supreme Court Decision 97Da12037, Sept. 8, 1998). As seen earlier, Defendant Republic of Korea received the above additional dues from Defendant 15, which had been appropriated for the total amount of value-added tax on August 23, 200, which is the date of establishing the first-class collateral security right of 00,000, which is the date of establishing the first-class collateral security right of 00,000,0000 won.

(B) As to this, Defendant Republic of Korea cancelled the disposition of deferment of collection of value-added tax on December 12, 1999, Defendant Republic of Korea’s revocation of the disposition of deferment of collection on an occasional amount of value-added tax, Defendant Republic of Korea’s assertion that the statutory period of additional and increased additional taxes of value-added tax would be prior to the date of establishment of the Plaintiff’s right to collateral security. Therefore, it is insufficient to acknowledge that Defendant Republic of Korea cancelled the disposition of deferment of collection as above even

(2) Defendant ○○-si

(A) Although Article 31(2)3 of the Local Tax Act (amended by Act No. 4995, Dec. 6, 1995; hereinafter the same shall apply) does not separately provide for the statutory due date of additional dues and aggravated additional dues, if local taxes are not paid by the due date pursuant to Articles 1(13 and 27(1) and (2) of the same Act, additional dues and increased additional dues shall be collected by adding additional dues to the notified tax amount pursuant to this Act, and if additional dues and increased additional dues are not paid by the due date after the due date, additional dues and increased additional dues shall be collected again. Thus, if additional dues and increased additional dues are not paid by the due date notified in the notice of the principal tax payment by the due date under Article 25 of the same Act or by the due date thereafter, additional dues and increased additional dues are naturally generated and finalized by the above provision without a separate procedure for determination of additional dues and increased additional dues. Therefore, the statutory due date of additional dues and increased additional dues shall be deemed to have been determined by analogy 200.

(B) In addition, where an additional tax under the Local Tax Act is not performed in order to ensure the faithful performance of the obligation under the Local Tax Act, if the amount to be collected in addition to the amount calculated under the Act is in essence different from the principal tax even if the additional tax is imposed and collected under the name of the principal tax, since it is in essence different from the principal tax, it shall be based on the statutory due date of the additional tax. Articles 120 and 121 of the Local Tax Act provide that where a person liable to pay acquisition tax fails to file a tax return within 30 days from the date on which he/she acquires the object of taxation, the additional tax shall be collected by means of ordinary collection. According to Article 1(1)6 of the same Act, the ordinary collection means that a public official issues a tax notice to the person liable to pay tax and collects the local tax pursuant to Article 31(2)3(b) of the same Act, the statutory due date of the additional tax shall be the date on which the tax notice is issued (see Supreme Court Decision 200Da12767, Apr. 24, 2001).

(C) The above amount of principal tax or additional tax of 0.20 won : X 20 .0 .0 . 20 . 80 . 20 . 40 . 20 . 20 . 8 . 40 . 20 . 8 . 40 . 20 . 8 . 40 . 20 . 8 . 40 . 20 . 40 . 16 . 5 . 20 . 8 . 40 . 16 . 40 . 6 . 40 . 8 . 20 . 16 . 40 . 70 . 8 . 40 . 70 . 40 . 1204 . 164 . 70 . 30

(D) If dividends are insufficient to repay all of the local taxes in arrears, the dividends can be appropriated by the choice of the person holding the right to deliver the taxes if they do not result excessively to the taxpayers. As such, 112,240,878 won is paid at the auction procedure of 126 of the building of this case: 7,406,060 won (=6,831,410 + 463,440 won + 111,210 won; - 207,818 won (= 112,240,8788, 207, 207, 208, 207, 207, 207, 207, 207, 207, 208.6, 207, 201.6, 206, 207.6, 207, 207, 2000 won) shall be appropriated on the above statutory auction procedure of Defendant ○.

(E) As to this, Defendant ○○○○ City asserts that local taxes related to the seizure of the building 513 of this case by the head of ○○○○○○ on August 31, 200 includes all delinquent local taxes of which the statutory due date has arrived before the transfer of ownership under the above 513, and thus, during the auction procedure under the above 513, the principal tax on real estate acquisition tax on May 12, 2000 and the increased amount of KRW 5,247,948, the principal tax and additional dues on resident tax on August 10, 200, the statutory due date of KRW 191,250, the total of KRW 54,893,650, the resident tax and additional dues on February 10, 202, the statutory due date of KRW 108,924,960, more than the Plaintiff.

However, the legislative purport of Article 35(1)3 of the Framework Act on National Taxes and Article 31(2)3 of the Local Tax Act is to properly harmonize the judicial request to guarantee the safety of transaction and the request to realize tax claims in relation to the secured real estate which requires public disclosure. Thus, taxation claims shall not be infringed on the essential contents of the secured real estate, and tax claims can be collected preferentially to the secured real estate that can be predicted to the extent that the secured real estate holder can have priority over the secured real estate in the future. The so-called seizure priority principle adopted by Article 36(1) of the Framework Act on National Taxes and Article 34(1) of the Local Tax Act intends to give the secured real estate more attention than other tax creditors and give priority to the collection right holder who has opened for tax collection. Thus, the above seizure priority principle can only be applied to determining the priority between the secured real estate claims and the secured real estate on which public notice is given (see, e.g., Supreme Court Decision 2001Du1681, Nov. 24, 2005).

B. Judgment on the main claim

(1) First, we examine the priority order between the defendant and the defendant ○○ City in the distribution procedure under 513 of the instant building.

(2) According to Article 34(1) of the Local Tax Act, where a property of a person liable for tax payment or person liable for extraordinary collection is seized by a disposition on default of money collectible by a local government, if a request for delivery of money collectible by another local government or national taxes is made, money collectible by a local government related to attachment shall

(3) According to Gap evidence Nos. 3, 10, Eul evidence Nos. 1, 2, 7-1, 2, and 8 of Eul evidence Nos. 1, 7-1, 2, and 8 of Eul evidence Nos. 3, 10, and 6, the fact that ○○○ Office entrusted with the imposition of the market price under Article 6 of the ○○○ City Ordinance on August 30, 200 with the statutory due date of ○○○○○○○ on May 12, 2000, which was 143,459, 710 won for the collection of 46 local taxes on the real estate Nos. 116, 401 of this case's building Nos. 116, and 513 of this case's building No. 513 of this case's attachment on the ○○○ City on August 30, 2005 of this case's building No. 215 of this case's.

(4) Therefore, in the auction procedure as to subparagraph 513 of the building of this case, the plaintiff's primary claim is without merit under the premise that the defendant Republic of Korea has priority over the defendant ○○ City, who is the person holding the right to issue the acquisition tax of real estate on May 12, 200.

C. Determination on the conjunctive claim

As seen earlier, Defendant ○○○○○○○○○’s statutory date of May 12, 2000, which is an amount in arrears attached to the distribution procedure under 513 of the instant building, shall take precedence over the Defendant’s Republic of Korea with respect to the acquisition tax, etc. on the real estate, which is the date of May 12, 2000, which is an amount in arrears attached to the distribution procedure under 513 of the instant building. As such, Defendant Republic of Korea is obligated to pay to the Plaintiff the amount of unjust enrichment of KRW 154,029,850, and Defendant ○○○○○○, which is an amount in arrears, 16,929,849 (i.e., the Plaintiff’s outstanding principal and interest 170,959,69, - KRW 154,029,850), and each of the above amounts, from November 12, 2003, to January 30, 2007, each of the following special cases shall be paid.

4. Conclusion

Thus, the plaintiff's main claim against the defendants in this case is dismissed as all of the grounds for appeal, and the conjunctive claim is accepted as all of the grounds for appeal.