추급효 부인 및 그 보완을 위한 개정 법률 내용 검토

초록

If a taxpayer who did not fulfill his/her tax obligation holds a property and transfers that property, the transferee of the property can not know whether the transferor has a tax obligation. If the state recognizes the superior right to the property in such cases, the transferee may suffer unexpected damage. As a result, when the taxpayer transfers a property, the state's tax claims are no longer allowed to be exercised on that property. This is why superior right is not recognized regarding tax claims in Korea. As a result, the creditors of the taxpayers are able to gain unexpected profits. The way to solve the above problems is to allow the state to absorb the amount previously allocated to creditors to the extent that it does not harm the predictability of the transferee and creditors. The revision of the “The Basic Law for National Taxes” on December 31, 2022 seems to have been drafted for that purpose. However, the revised law presupposes that the tax claims collected by the state are not tax claims to the transferor, but tax claims of the transferee. The revised law partially recognizes the superior right to recover tax claims in preference to the transferor's creditors. However, for this, the transferee must have a tax liability, and it is possible only within the limit of the amount of the transferee's tax liability. In addition, if (1) the date on which the transferor's creditors acquire the security right is earlier than the tax claims’ priority base date, or (2) the security right was already established before the transferor's acquisition of the property, the superior right can not be exercised. But it's hard to find a reasonable bases for that. Considering the aboves, it seems that the revised law on December 31, 2022 needs to be revised again as soon as possible.

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