[법인세등부과처분취소][공1998.12.1.(71),2802]
[1] Whether a notice of payment to the second taxpayer, which was issued before the tax disposition against the principal taxpayer becomes effective, is legitimate (negative)
[2] The requirements to permit the recovery of defects in the administrative act
[3] The case holding that the procedural defect in the procedure of the notice of payment to the secondary taxpayer prior to the effectiveness of the taxation disposition against the principal taxpayer was cured after the taxation disposition against the principal taxpayer became effective
[1] A notice of payment to a secondary taxpayer is formally independent tax assessment, but in substance, it has the nature as a disposition in the collection procedure for the main tax liability finalized by a tax assessment, etc. Therefore, in order to issue a notice of payment to a secondary taxpayer, it is unlawful to first go through the procedure to determine his specific tax liability by imposing a tax on the primary taxpayer, and immediately issue a notice of payment to the secondary taxpayer without going through such procedure.
[2] The remedy of defects in the defective administrative act can be exceptionally permitted according to the specific circumstances within the extent that it does not infringe the rights and interests of the people in order to avoid the dancing of the administrative act and to protect the legal stability of the parties, although it is not permitted in principle from the perspective of the nature of the administrative act or the rule of law.
[3] The case holding that the procedural defect in the procedure of the notice of payment to the secondary taxpayer prior to the effectiveness of the taxation disposition against the principal taxpayer was cured after the taxation disposition against the principal taxpayer became effective
[1] Article 39 of the Framework Act on National Taxes, Article 12 of the National Tax Collection Act / [2] Article 1 of the Administrative Litigation Act / [2] Article 12 of the National Tax Collection Act
[1] Supreme Court Decision 82Nu123 delivered on May 10, 1983 (Gong1983, 968), Supreme Court Decision 87Nu375 delivered on June 14, 198 (Gong1988, 1039) / [2] Supreme Court Decision 82Nu420 delivered on July 26, 1983 (Gong1983, 1352), Supreme Court Decision 91Nu13274 delivered on May 8, 192 (Gong192, 1874) / [3] Supreme Court Decision 91Nu13274 delivered on May 8, 192 (Gong192, 1874)
dong School Foundation (Attorney Ha Young-young, Counsel for defendant-appellant)
Head of Maritime Affairs Office
Busan High Court Decision 96Gu8772 delivered on January 15, 1998
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. A. The lower court: (a) on January 31, 1990, issued a resolution of dissolution and transferred the real estate owned by Samsung Life Insurance Co., Ltd. to the Plaintiff on March 26, 199; (b) on the ground that, upon reporting the tax base and tax amount of corporate tax (special surtax) upon transfer of real estate, it applied for corporate tax exemption pursuant to the Regulation of Tax Reduction and Exemption Act; (c) on December 16, 1991, the Defendant did not recognize the above exemption exemption; (d) on the 2nd hotel’s 3rd hotel’s 4th hotel’s 5th hotel’s 2nd hotel’s 5th hotel’s 2nd hotel’s 2nd hotel’s 4th hotel’s 5th hotel’s 2nd hotel’s 2nd hotel’s 2nd hotel’s 2nd hotel’s 2nd hotel’s 2nd, the lower court determined that each of the above 2nd hotel’s 2nd hotel’s 3rd hotel’s 5th hotel’s 20th hotel 1.
B. Although a notice of payment to the secondary taxpayer is formally independent tax assessment, in substance, it has the nature as a disposition in the collection procedure for the main tax liability finalized by a tax assessment. Thus, in order to issue a notice to the secondary taxpayer, it is unlawful to first impose a tax on the primary taxpayer and then go through the procedure to determine his specific tax liability, and immediately issue a notice of payment to the secondary taxpayer without going through such procedure (see this Court Decision 87Nu375, Jun. 14, 198). If the facts of this case are acknowledged by the court below as recognized by the court below, it is erroneous in this case to issue a notice of payment to the secondary taxpayer (see this Court Decision 87Nu375, Jun. 14, 198). Thus, since the Defendant’s taxation to the secondary taxpayer at the time of issuing a notice of payment to the Plaintiff as the primary taxpayer has not yet become final and conclusive as it does not have any specific tax liability of the extreme hotel, it is contrary to the
C. However, in light of the nature of the administrative act or the rule of law, the correction of defects in the defective administrative act is not permitted in principle, but can be exceptionally permitted in accordance with specific circumstances to the extent that it does not infringe upon the rights and interests of the people (see this Court Decision 91Nu13274 delivered on May 8, 192). In this case, according to the facts acknowledged by the court below, the extreme hotel did not have any property until the plaintiff owns 100% shares issued in the liquidation procedure, and it did not have any property in the first disposition, so the plaintiff was designated as the second taxpayer, and the defendant received the tax amount from the plaintiff. The defendant, at the same time as the notice of the payment of this case against the plaintiff, found the liquidator's domicile to be a relationship without the office of the person liable for tax payment, but the liquidator moved his address to the address, but the plaintiff's notice of tax payment to the plaintiff's address was delivered on the next day after the second notice of tax payment to the plaintiff's address.
D. The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the secondary tax liability, as otherwise alleged in the ground of appeal. Therefore, the ground of appeal on this point is rejected.
2. The court below is just in rejecting the Plaintiff’s assertion that the instant payment notice disposition against the Plaintiff violated the principle of trust protection or the principle of invalidation, and there is no error in the misapprehension of the legal principles, and thus, we cannot accept the ground of appeal on this point
3. According to Articles 38 and 39 of the Framework Act on National Taxes, where the secondary taxpayer is unable to pay the national tax, additional dues, or disposition fee for arrears that the principal taxpayer should pay, the secondary tax liability is stipulated for the shortage. Thus, the secondary tax obligor is obligated to pay the additional dues and additional dues that the principal taxpayer should pay. The judgment below is just, and there is no error in the misapprehension of legal principles as to the additional dues and additional dues, as otherwise alleged in the grounds of appeal. Accordingly, the grounds of appeal on this issue are not accepted.
4. The plaintiff did not have any ground of appeal as to the rejection of the lawsuit as to the primary claim seeking confirmation of invalidity of the disposition of this case.
5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Lee Don-hee (Presiding Justice)