[개인영업세등부과처분취소][공1988.4.15.(822),602]
(a) Cancellation of a tax payment notice and the effect of interrupting prescription resulting from such notice;
B. Whether the right to impose national taxes is also applied to the interruption of extinctive prescription under Article 28(1) and (2) of the former Framework Act on National Taxes (amended by Act No. 3746 of Aug. 7, 1984)
A. As the interruption of extinctive prescription is a system that prevents the progress of extinctive prescription on the grounds of the fact that the non-exercise of the right, which serves as the basis of extinctive prescription, was established, the interruption of extinctive prescription already created by the exercise of the right by the person who has the right to collect a national tax by a notice of tax payment, was revoked, and the tax disposition (tax notice) was revoked and retroactively lost its validity due to the cancellation of the tax disposition, it cannot be deemed that the attachment disposition based on the disposition of national tax in arrears becomes void and void as a result of its invalidation. Therefore, the effectiveness of the interruption of extinctive prescription is not nonexistent.
B. The interruption of extinctive prescription as referred to in Article 28(1) and (2) of the former Framework Act on National Taxes (amended by Act No. 3746 of Aug. 7, 1984) is the same as the right to impose and collect national taxes.
Article 28 of the former Framework Act on National Taxes (amended by Act No. 3746 of Aug. 7, 1984)
A. Supreme Court Decision 85Nu686 delivered on July 8, 1986, 85Nu797 delivered on November 11, 1986, and 86Nu130 delivered on May 26, 1987. Supreme Court Decision 87Nu298 delivered on September 8, 1987, 85Nu688 delivered on February 23, 198.B. Supreme Court Decision 84Nu572 delivered on December 26, 1984, and 84Nu619 delivered on April 9, 1985.
Attorney Jeon Jong-gu, Counsel for the defendant-appellant
Head of Mapo Tax Office
Seoul High Court Decision 85Gu139 delivered on September 30, 1985
The judgment below is reversed and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
According to the reasoning of the judgment of the court below, the court below determined that the above initial taxation and the attachment based on the initial taxation are invalid, on the premise that even if the original taxation was issued as of June 10, 197 by the original taxation and the original taxation was revoked by the final judgment, if the original taxation was revoked by the final judgment, the interruption of the extinctive prescription by the above tax payment notice does not take place, and thus, the validity of the interruption of the extinctive prescription does not take place by the original taxation and the attachment based on the original taxation becomes null and void by the lapse of five years after the expiration of the tax base return or the payment deadline in its statement.
However, as the interruption of extinctive prescription is a non-exercise of right which serves as the basis of extinctive prescription, and a system which prevents the progress of extinctive prescription due to the exercise of right by a person who has the right to collect national taxes by a tax payment notice, the effect of interruption of extinctive prescription already created by the exercise of right by the person who has the right to collect national taxes has been cancelled, and it cannot be deemed as null and void as a result of invalidation of the disposition based on the cancellation of the tax payment disposition (see Supreme Court Decision 85Nu686, Jul. 8, 1986). Furthermore, the effect of interruption of extinctive prescription due to the seizure does not disappear at any time after the original decision of the National Tax Act (amended by Act No. 3746, Aug. 7, 1984) which was enforced after the expiration of the extinctive prescription period, and the court below should have determined at any time and after the expiration of the period of extinctive prescription of the tax payment notice, which had already been suspended by the final judgment of this case.
Therefore, the judgment below is reversed, and the case is remanded to the Seoul High Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Il-young (Presiding Justice)