[상속세부과처분취소][집33(1)특,223;공1985.4.1.(749) 446]
Scope of tax claims whose prescription is suspended by a tax payment notice.
In a case where a part of a claim can be specified, the interruption of prescription for the remaining portion for which a claim is not filed shall not take effect, and this does not change even in the state tax claims. Therefore, the part, the prescription of which is interrupted by a notice of tax payment, shall run without interruption of prescription for the portion on which the notice of tax payment was served and the remaining portion, as to the right to impose tax on the portion
Articles 27 and 28(1) of the Framework Act on National Taxes
Supreme Court Decision 74Da1557 Delivered on February 25, 1975
Plaintiff 1 and 2 others, Counsel for the plaintiff-appellant Kim Jong-ap
hill of the tax office
Seoul High Court Decision 84Gu166 delivered on August 29, 1984
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The grounds of appeal are examined.
1. (1) With respect to the extinctive prescription under paragraph (1) of Article 27 of the Framework Act on National Taxes, if the State’s right to collect national taxes is not exercised within five years from the time it is possible to exercise it, the extinctive prescription shall be completed (2) except as otherwise provided for in this Act or other tax-related Acts, and Article 28(1) of the same Act provides for a notice of tax payment as one of the causes interrupting extinctive prescription under Article 27;
The key issue in this case is whether the scope of extinctive prescription is interrupted by a notice of tax payment under Article 28(1) above, unless it is limited to the portion on which the notice of tax payment was served and the amount thereof, or whether it affects the entire amount of taxes to be taxed as the same taxable cause as the notice of tax payment
2. The extinctive prescription system originally does not take effect when the right holder does not exercise his/her right for a certain period, i.e., when the state of non-exercise of right continues to exist for a certain period, the extinction of his/her right does not take effect as to the remainder for which one claim can be specified (see Supreme Court Decision 74Da1557, Feb. 25, 1975). This is not different from the State tax claim, and as such, the decision of the court below is just and justifiable in holding that the extinctive prescription of the right to impose inheritance tax upon the deceased on Nov. 15, 197 by the deceased non-party on February 16, 1978, which was three months after the above date, and that the defendant's imposition of inheritance tax amount740,024,024, 148, and 1504, which was 198, imposed on the plaintiffs as inheritance tax and the inheritance tax amount remaining after the lapse of the extinctive prescription.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Jeon Soo-hee (Presiding Justice)