[부당이득금][공1996.5.1.(9),1243]
[1] The method of cancelling write-off
[2] Whether the tax amount in arrears paid to avoid a disposition on default upon the revocation of invalid deficits is unjust enrichment (affirmative)
[1] The cancellation of a disposition on deficits is an administrative disposition that enables the recovery of a tax liability once extinguished due to a disposition on deficits to restore it again and does not have any provision for the notification procedure of cancellation of the disposition on deficits under the law. However, when the disposition on deficits is cancelled, a taxpayer would be at a disadvantage to bear the tax liability again. Thus, in order to ensure the clarity of tax administration and legal stability and predictability of the taxpayer in light of the principle of no taxation without law, the cancellation of the disposition takes effect by notifying the taxpayer in writing at least by specifying the reasons and scope of the cancellation in detail.
[2] In order to avoid a disposition for arrears conducted on the grounds of cancellation of invalid disposition for arrears, the amount of delinquent taxes paid by a taxpayer by subrogation shall be refunded to the relevant subrogated payer, as the State possesses it without any legal grounds.
[1] Articles 9(1), 20(2), and 86(2) of the National Tax Collection Act, Article 25 of the Enforcement Decree of the National Tax Collection Act / [2] Article 741 of the Civil Act, Article 86(2) of the National Tax Collection Act
[1] Supreme Court Decision 93Nu1308 delivered on September 28, 1993 (Gong1993Ha, 3005)
Samsung Fire & Marine Insurance Co., Ltd. (Attorneys Kim Jong-bong et al., Counsel for the plaintiff-appellant)
Republic of Korea (Attorney Long-ro et al., Counsel for the defendant-appellant)
Supreme Court Decision 94Da8686 delivered on June 28, 1994
Seoul High Court Decision 94Na25362 delivered on September 15, 1995
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
1. On the first ground for appeal
The disposition on deficits is a disposition to extinguish the liability for the payment of national taxes in arrears where a taxpayer has a reason corresponding to certain requirements, such as insolvency, etc. (Article 26 subparagraph 1 of the Framework Act on National Taxes and Article 86 (1) of the National Tax Collection Act), and Article 86 (2) of the National Tax Collection Act provides for the cancellation of the disposition on deficits where the director of the tax office discovers the existence of other seizable assets at the time of the disposition on deficits.
The cancellation of a disposition on deficits is an administrative disposition that enables the recovery of a tax liability once extinguished due to a disposition on deficits and thus enables the disposition on default again, and it does not have any provision for the notification procedure of cancellation of the disposition on deficits under the Act and subordinate statutes. However, in order for a taxpayer to ensure the clarity of tax administration and legal stability and predictability of the taxpayer in light of the principle of no taxation without representation, the cancellation of such disposition shall take effect by notifying the taxpayer in writing at least by specifying the reasons and scope of cancellation in detail, in accordance with the procedure for notice of tax payment (Article 9(1) of the National Tax Collection Act), procedure for cancellation of collection (Article 20(2) of the National Tax Collection Act and Article 25 of the Enforcement Decree of the National Tax Collection Act
In this case, the defendant revoked the original write-off and did not notify the taxpayer of the disposition on default. Thus, the cancellation of the write-off in this case is null and void.
The judgment of the court below to the same purport is just, and the disposal of deficits is a provisional disposition for the internal accounting convenience of the tax authority, and its cancellation is merely an independent administrative disposition that executes the contents of the above provisional disposal according to changes in circumstances, or it cannot be deemed that the cancellation of disposal of deficits does not require notification to the taxpayer due to the cancellation of disposal of deficits, and therefore there is no reason to discuss it.
The Supreme Court Decision 93Nu1308 delivered on September 28, 1993 pointed out by the defendant points out that it does not have any provision regarding the cancellation of write-off, and it is clear that in addition, the cancellation of write-off is not necessary to give notice to the taxpayer. The argument related to this is merely a misunderstanding of the purport of the above judgment.
2. On the second ground for appeal
As long as the cancellation of the disposition on deficits in this case does not take effect, the defendant's subrogated tax amount paid by the plaintiff to avoid the disposition on deficits in order to avoid the disposition on default conducted by the cancellation of the disposition on deficits is held by the defendant without any legal ground, and thus, it should be returned to the plaintiff. Since it is natural to require notice to the taxpayer in order to cancel the disposition on deficits in this case, it is reasonable to require notification to the taxpayer. Thus, even though there was no precedent of party members as to the above legal principles, it cannot be deemed that there is a reasonable ground for the defendant to resist the existence of the obligation until the decision on the court below is rendered
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jae-soo (Presiding Justice)