Military Accounting Support-2014-Annex-10856 (Law No. 29, 2015)

The statute of limitations has been interrupted due to seizure before the expiration of the statute of limitations, and the statute of limitations has run again after the cancellation.

National taxes were collected before the expiration of the statute of limitations due to seizure before the expiration of the statute of limitations, and legitimate by collecting national taxes before the statute of limitations.

2015Na100315 Undue gains

○ ○

Korea

Military acid Support Decision 2014Gahap10856 decided January 29, 2015

2016.03.10

2016.05.12

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 81,647,250 won with 5% interest per annum from July 12, 2013 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. The defendant's purport of appeal

The same shall apply to the order.

1. Facts of recognition;

A. On December 2, 200, the head of the ○○ Tax Office under the Defendant-affiliated Tax Office determined and notified the transfer income tax for the year 1997 as KRW 45,028,360, and the payment deadline on December 31, 200 (hereinafter “instant disposition”). As of July 8, 2013, the Plaintiff did not pay it by the payment deadline, the total amount of arrears, including the additional dues, was KRW 79,700,170.

B. On July 11, 2013, the head of the ○○ Tax Office collected KRW 81,647,250, a total of KRW 79,70,170,170, and commission for public sale agency for the foregoing arrears and KRW 1,947,080, by seizing and collecting the Plaintiff’s claim against the Plaintiff’s implied disregard (hereinafter “collection of this case”).

C. Relevant statutes

It is as shown in the attached Form.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 3, the purport of the whole pleadings

2. Judgment on the main defense of this case

The court's explanation of this part is identical to the statement of the reasons for the judgment of the court of first instance.

Therefore, it is accepted by the main text of Article 420 of the Civil Procedure Act as it is.

3. Determination on the cause of the claim

A. Summary of the parties' arguments

The plaintiff (1) The period of extinctive prescription of the right to impose and collect capital gains tax shall expire from the next day of the statutory due date of payment. The period of extinctive prescription of the right to impose and collect capital gains tax for the year 1997 of this case shall expire from June 1, 1998, which is the day following the due date of the final due date of return, and the period of extinctive prescription has expired from May 31, 2003. (2) Even if the extinctive prescription run from January 1, 2001, which is the day following the due date of payment determined by the duty payment notice, it cannot be deemed that the defendant had effectively seized the deposit account in the plaintiff's name on October 20, 2005, and thus, the extinctive prescription has expired on December 31, 20

As to this, the defendant asserts that the collection of this case is justified, since the period of extinctive prescription was interrupted by the effective seizure of the deposit account in the plaintiff's name on October 20, 2005, prior to the expiration of extinctive prescription.

B. Determination

1) According to Article 27(1) and (3) of the Framework Act on National Taxes and Article 12-4(1)1 and 2 of the Enforcement Decree of the same Act, where a taxpayer has reported the accurate tax base and amount of tax in national taxes (i.e., national taxes by declaration method) for which tax base and amount of tax are determined, including capital gains tax, following the statutory due date of payment, if the taxpayer has reported the correct tax base and amount of tax, and where the tax authority issues a tax payment notice in the course of correcting or determining the tax base and amount of tax by omitting the tax base and amount of tax or omitting part

2) As to the instant case, (1) the Plaintiff did not report the tax base and tax amount of capital gains tax in 1997 by the statutory due date for return and payment; (2) the head of ○○ Tax Office under the Defendant’s control determined the due date for payment on December 2, 200 and imposed the instant disposition on December 31, 200; and (2) accordingly, the extinctive prescription of the right to impose and collect capital gains tax is proceeding from January 1, 2001, the following day of the said due date for payment; and (3) the fact that the instant collection was made on July 11, 201, after the lapse of five years from January 1, 2001.

However, on the other hand, the statements in Eul Nos. 1, 2, and 5, and on ○○ Bank for the party deliberation.

12. On October 20, 2005, in addition to the whole purport of pleadings as a result of the reply on the financial transaction information made on June 16, 2005, ○○ Tax Office attached a deposit account (Account number of 000-000-00072, account number of 000-0079) in the Plaintiff’s name, and then cancelled the seizure on November 9, 2010 (in addition, ○○ Tax Office attached the Plaintiff’s bank account (Account number of 00-000-000-0036) around October 24, 2005, since the statute of limitations for national tax collection was interrupted during the above period of seizure, the Defendant’s assertion that the statute of limitations for national tax collection had run again after the above cancellation of the statute of limitations is justified.

3) As to this, the Plaintiff asserts to the effect that it is difficult to deem that there was a legitimate seizure in light of the circumstances such as the Defendant’s seizure of ○○ Bank’s deposit account under the Plaintiff’s name and the Defendant’s release without collection, etc., or that there was no effect

However, in light of the following circumstances that can be acknowledged by comprehensively taking into account the purport of the entire arguments on the evidence mentioned above, i.e., (1) the deposit account in the name of the Plaintiff attached by the Defendant is a separate deposit account; (2) in the case of a separate deposit by the tax office’s seizure, it is possible to seize it by accident registration, but it is impossible to collect it; and (2) according to the statement in the evidence No. 1, the Defendant appears to have lawfully notified the Plaintiff of the seizure (as long as it is recognized that the Defendant seized the Plaintiff’s financial transaction information reply to the ○○ Bank on December 16, 2015 or the statement in the evidence No. 5 of the Plaintiff’s name, the seizure of subparagraph No. 1 included in the notice of the above seizure should be justified.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair, and it is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.