Whether a seizure disposition without loss is illegal (negative)

A disposition of deficits is not a cause to extinguish tax liability, so a purchaser of the real estate seized without causing loss cannot claim the cancellation of the attachment of the purchased real estate under the premise of extinction of tax liability due to loss.

Article 26 subparagraph 1 of the Framework Act on National Taxes, Article 53 of the National Tax Collection Act

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

It is confirmed that the Defendant’s omission of the attachment No. 44771 that was received on July 16, 1998 and the application for cancellation of participation in the attachment No. 4505 that was received on July 18, 1998 by ○○○○○, 271 square meters and above ground wooden roof, ○○○○○, ○○ District Court, ○○○○○, ○○○○○, ○71, and ○○○, ○○○,

1. Details of the disposition;

A. As ○○ did not file a voluntary report and pay the value-added tax, the Defendant decided and notified ○○○ of each value-added tax of KRW 12,638,00 as of March 11, 1998 and KRW 1,256,040 as of June 9, 1998, but on the ground that it was proved that ○○ had no property of ○○○ on June 27, 1998, issued a disposition of deficit on the value-added tax of KRW 12,638,000 (hereinafter “instant disposition of deficit”). On June 24, 1999, the Defendant issued a disposition of deficit on the value-added tax of KRW 1,256,040 as of June 24, 199.

B. On October 23, 1992, the registration of ownership transfer was made in relation to 00 00 m271 m2 and above ground m271 m2 and m20 m2 above ground m200 m200 m2000 and m20 m200 m200 m200 m200, and the defendant found the real estate of this case, and thereafter, the defendant seized the real estate of this case based on the above delinquent tax credit, and the registration of participation in attachment was completed on July 16, 1998 by the ○○ District Court ○○○ m271 m20 m20 and m250 m200(hereinafter referred to as "the seizure and participation in attachment of this case").

C. The ○○○ completed the registration of ownership transfer on July 24, 1998 on the instant real property, and on March 15, 2000, the ○○○ completed the registration of ownership transfer on the Plaintiff’s future.

D. On July 10, 2006, the Plaintiff filed an application with the Defendant for the rescission of each of the above seizure, but the Defendant did not take any measure against this (hereinafter “instant omission”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-4, 6, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-1, the purport of the whole pleadings

2. Judgment on the Defendant’s main defense

A. The assertion

As to the plaintiff's lawsuit of this case seeking confirmation of illegality of the omission, the defendant asserts that the lawsuit of this case should be dismissed on the following grounds.

(1) The Plaintiff’s transferee of the seized real estate has a de facto or indirect interest in the seizure of this case, and does not have a direct and specific interest in law, and thus does not have a right under law or sound reasoning to demand the cancellation thereof. Therefore, the instant lawsuit cannot be deemed to have standing to sue or an illegal omission subject to an appeal litigation. Therefore, it is unlawful since it cannot be deemed that

(2) As the Plaintiff filed the instant lawsuit without going through the pre-trial procedure under Article 56(2) of the Framework Act on National Taxes, the instant lawsuit is unlawful.

(b) Related statutes;

【National Tax Collection Act

Article 53 (Requirements for Release of Attachment)

(1) The director of the tax office shall release the attachment in cases falling under any of the following subparagraphs:

1. If the attachment is no longer needed because of payment, appropriation, suspension of a public auction, cancellation of the imposition, and other reasons;

(2) The director of the tax office may release the attachment of a property partially or totally in cases falling under any of the following subparagraphs:

1. If the price of the property conspicuously exceeds the total amount of the delinquent amount due to the price fluctuation and other reasons after the attachment;

2. If the delinquent amount related to the attachment is partially paid or appropriated;

3. If the imposition is partially cancelled; and

4. If other seizable properties provided by the defaulted taxpayer are attached.

【National Taxes Act

Article 56 (Relation with Other Acts)

(2) Notwithstanding the provisions of Article 18 (1) (main sentence), (2) and (3) of the Administrative Litigation Act, any administrative litigation against any illegal disposition as prescribed in Article 55 shall not be instituted without going through a request for examination or adjudgment and a decision thereon under this Act.

C. Determination

(1) Although the tax authority seized a taxpayer's property as part of a disposition on default, where a cause for cancellation of attachment under each subparagraph of Article 53 (1) of the National Tax Collection Act occurs thereafter, the head of a tax office shall release the attachment, and the taxpayer and a person who has legal interest in the cancellation of attachment may apply for the cancellation of attachment to the tax authority at any time, unless a cause for cancellation of attachment arises (see Supreme Court Decision 95Nu15193, Dec. 20, 196). A person who has legal interest in the cancellation of attachment after a tax authority's disposition on seizure and completed the registration of transfer of ownership after transfer of the real property, may request the tax authority to release the attachment (see Supreme Court Decision 92Nu15055, Apr. 27, 1993).

Therefore, the defendant's argument is groundless on different premise.

(2) Article 56(2) of the Framework Act on National Taxes provides that if a disposition under the Framework Act on National Taxes or the tax-related Acts is unlawful, administrative litigation against such unlawful disposition shall not be instituted without going through a request for examination or a request for adjudication and a decision thereon. As such, whether such a lawsuit requirements are satisfied shall be determined as at the time of closing of argument. Thus, if a request for an examination and a decision based thereon are made before it

In full view of the purport of evidence Nos. 5-1, 5-2, and 6 as a whole, the plaintiff filed a request for examination with the Commissioner of the National Tax Service for the discharge of the obligation to cancel the attachment of this case which was conducted without cancellation of disposal of deficit on October 13, 2006, and the Commissioner of the National Tax Service can recognize the fact that the above request for examination was dismissed on December 26, 2006. According to the above facts acknowledged, according to the above facts, the defects in the lawsuit of this case, which had not gone through the above judgment, were cured. Thus, the defendant's assertion is groundless.

3. Determination on the legitimacy of the disposition

A. Summary of the plaintiff's assertion

Since the obligation to pay the value-added tax of this case is extinguished due to the disposition on deficits of this case, as long as the defendant had not cancelled the disposition on deficits of this case before the seizure of this case, it constitutes an illegal seizure based on the extinguished tax liability, and therefore, the defendant does not take any measures to release the above seizure within a considerable period of time, and thus, the omission of this case by the defendant is unlawful.

(b) Related statutes;

director of the National Tax Collection Act (amended by Act No. 6053 of Dec. 28, 1999)

Article 53 (Requirements for Release of Attachment)

(1) The director of the tax office shall release the attachment in cases falling under any of the following subparagraphs:

1. If the attachment is no longer needed because of payment, appropriation, suspension of a public auction, cancellation of the imposition, and other reasons;

Article 86 (Disposal of Deficit)

(1) In case falling under any of the following subparagraphs, the director of the tax office may take disposal of deficit for the taxpayer:

4. Where it is deemed that there is no possibility of collection as prescribed by the Presidential Decree.

(2) If the director of the tax office finds after taking the disposal of deficit under paragraph (1), the existence of other seizable assets at the time of the disposal of deficit, he shall cancel the disposal without delay, and take disposition for arrears.

director of the National Tax Collection Act (amended by Act No. 6053, Dec. 28, 1999)

Article 86 (Disposal of Deficit)

(1) In case falling under any of the following subparagraphs, the director of the tax office may take disposal of deficit for the taxpayer:

4. Where it is deemed that there is no possibility of collection as prescribed by the Presidential Decree.

(2) When the director of the tax office finds other seizable properties after taking the disposal of deficit under paragraph (1), he shall cancel the disposal of deficit, and take disposition for arrears without delay.

【Enforcement Decree of the National Tax Collection Act

Article 86 (Disposal of Deficit)

(1) The disposal of deficit pursuant to the provisions of Article 86 (1) 4 of the Act shall be limited to the cases falling under any of the following subparagraphs:

1. In case it is turned out that the defaulter is missing or he does not have any property;

director Framework Act on National Taxes (amended by Act No. 5189 of Dec. 30, 1996)

Article 26 (Extinguishment of Liability to Pay National Taxes, Additional Dues, or Expenses for disposition on default) The liability to pay such national taxes, additional dues, or expenses for disposition on default shall expire

1. When the payment, appropriation or imposition is cancelled or written off as deficit;

director Framework Act on National Taxes (amended by Act No. 5189, Dec. 30, 1996)

Article 26 (Extinguishment of Liability to Pay National Taxes, Additional Dues, or Expenses for disposition on default) The liability to pay such national taxes, additional dues, or expenses for disposition on default shall expire

1. When the impositions are paid, appropriated, or the imposition is cancelled;

3. Determination

First, as to whether the obligation to pay the value-added tax of this case is extinguished due to the disposition of this case, and as to whether the "disposition of this case" stipulated as one of the grounds for extinguishment of tax liability under Article 26 subparagraph 1 of the Framework Act on National Taxes before the amendment by Act No. 5189 of December 30, 196 is excluded from the grounds for extinguishment of tax liability under the amended Act, the disposition of this case is not extinguished due to the disposition of this case.

Meanwhile, even if the Defendant did not cancel the instant disposition on deficits as alleged by the Plaintiff, as seen earlier, the Plaintiff acquired the instant real estate from ○○○, a taxpayer, through ○○○, with a view to the cancellation of the attachment, and as such, did not have any factual and indirect interests as to the attachment disposition itself, and did not have any direct and specific interests. As such, ○○○, a direct party to the disposition, who received the disposition, may not seek the revocation thereof directly (see, e.g., Supreme Court Decision 91Nu6023, Mar. 31, 192). Furthermore, the circumstances as alleged above do not constitute grounds for revocation of the attachment.

Therefore, the plaintiff's assertion that the defendant is obligated to cancel the attachment disposition of this case within a considerable period of time is without merit, as it constitutes "when the attachment is no longer needed due to other reasons" under Article 53 (1) 1 of the National Tax Collection Act on the premise that the obligation to pay the value-added tax of this case is extinguished.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges ○○○○ ○

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