A. Whether the validity of the interruption of extinctive prescription of the tax liability due to a taxation disposition continues even where such taxation disposition has been revoked

B. Whether the interruption of prescription takes effect by a tax authority’s responding act

A. If there was a prior taxation prior to the expiration of the extinctive prescription period of the right to impose and collect the national tax, the extinctive prescription due to such taxation has been interrupted, and the interruption of prescription has not been invalidated after the revocation of the said taxation.

B. If there is a defect in the taxation procedure that does not specify the basis for calculating the amount of tax in the prior taxation notice, and the judgment against the tax authority was rendered and finalized in the lawsuit seeking revocation of the said taxation disposition, the interruption of extinctive prescription cannot be effective in the subsequent taxation disposition by the tax authority. Moreover, even if a lawsuit against the prior taxation disposition is pending, the tax authority may cancel the illegal administrative disposition by itself and make a new tax disposition by supplementing the procedural defect, and thus, the extinctive prescription cannot be run because it is impossible to exercise other legitimate rights except for the pleading that the prior taxation disposition is legitimate until the lawsuit seeking revocation of the tax disposition is completed.

Articles 27 and 28 of the Framework Act on National Taxes

A. Supreme Court Decisions 85Nu6888 Decided January 20, 1983; 83Nu346 Decided July 8, 1986; 85Nu686, 769, and 877 Decided September 9, 1986; 85Nu836 Decided February 23, 1988

Plaintiff

Head of Yongsan Tax Office

Seoul High Court Decision 85Gu1013 decided January 31, 1986

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

In its reasoning, the judgment of the court below recognized the following facts: (a) the defendant filed a lawsuit against the plaintiff on July 10, 1978 for the cancellation of the above disposition with the Seoul High Court's judgment on December 16, 1983; and (b) the defendant made the same taxation as the above tax disposition on Sep. 14, 1985, stating the grounds for calculating the amount of tax against the plaintiff; (c) five years have passed since the statute of limitations prescribed by the Framework Act on National Taxes had been expired prior to the tax disposition; and (d) the above prior disposition became retroactively null and void due to the cancellation of the disposition by the above Supreme Court's judgment, and thus, (e) the statute of limitations has not expired since the above previous disposition became invalid retroactively from the beginning.

However, if there was a tax disposition prior to the expiration of the extinctive prescription period of the right to impose and collect national taxes of this case, the extinctive prescription shall be interrupted due to such tax disposition. Since the interruption of prescription shall not expire after the party member’s revocation (see, e.g., Supreme Court Decision 85Nu686, Jul. 8, 1986; Supreme Court Decision 85Nu836, Sept. 9, 1986; Supreme Court Decision 83Nu36, Jan. 20, 1983; Supreme Court Decision 83Nu346, Jan. 20, 198), the above determination by the court below, unlike the above determination of the extinctive prescription period of the preceding tax disposition, may not be deemed to have been erroneous in matters of law by misapprehending the legal principles regarding the interruption of prescription period and its validity by the preceding tax disposition, and it can be deemed that the period of extinctive prescription period of the preceding tax disposition should not be more than 15 days run from the date of the preceding tax disposition.

Although the Defendant asserted that the statute of limitations was interrupted on the ground that the above prior taxation disposition was based on the attachment disposition on July 7, 1978, the Defendant did not find out any trace of the Defendant’s assertion as to this disposition in the court below’s pleading, and there was no data to deem that there was such attachment disposition and there was no other evidence to prove that the statute of limitations had been interrupted on the ground that the new statute of limitations commenced.

Therefore, even if the statute of limitations has been interrupted due to the above prior taxation disposition, the right to impose and collect national taxes of this case shall be deemed to have expired since July 26, 1978, which was newly shown to have commenced the proceeding thereafter, and the five-year statute of limitations, which was the date of the taxation disposition of this case, had already expired before January 14, 1985.

Ultimately, the reasoning of the lower judgment’s rejection of the Defendant’s assertion is not acceptable, but it is justifiable in that it is concluded that the extinctive prescription of the instant taxation claim had already been completed and extinguished prior to the instant taxation disposition. The allegation is groundless.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-chul (Presiding Justice)