[1] Where a disposition on deficits was made at the time of the enforcement of the former National Tax Collection Act, whether the disposition on deficits can be cancelled and the disposition on default can be made by applying the new law which was amended disadvantageous to the taxpayer (negative)

[2] In a case where the first disposition of deficits is made during the enforcement of the former National Tax Collection Act, and the second disposition of deficits after the revocation of the first disposition of deficits under the amended new law, whether the benefit of lawsuit seeking revocation of the first disposition of deficits is extinguished (negative)

[1] Article 86 (2) of the former National Tax Collection Act (amended by Act No. 6053 of Dec. 28, 1999) provides that "where a person becomes aware of the existence of any other seizable property at the time of a disposition on default," which was stipulated as one of the grounds for extinguishment of tax liability under Article 26 subparagraph 1 of the Framework Act on National Taxes prior to the amendment by Act No. 5189 of Dec. 30, 1996, "if a person becomes aware of the existence of other seizable property at the time of such disposition on default," such disposition on default shall be revoked without delay, and where another property is found in accordance with the purpose of the amended Framework Act on National Taxes (amended by Act No. 6053 of Dec. 28, 1999), the amended National Tax Collection Act has expanded to "when a person becomes aware of another property which can be seized after the amendment of the National Tax Collection Act provides that "when a disposition on default is completed, it shall not be revoked when the tax obligor newly becomes aware of a disposition on default.

[2] In the case where the first disposition of deficits was made during the enforcement of the former National Tax Collection Act (amended by Act No. 6053 of Dec. 28, 1999), and the second disposition of deficits was again cancelled under the amended new Act, and the second disposition of deficits was made again. The second disposition of deficits is conducted after the enforcement of the amended National Tax Collection Act, different from the first disposition of deficits, and even in the case where the property acquired after the disposition is discovered, the second disposition of deficits can be cancelled and the procedure of disposition of arrears can be conducted. Thus, it cannot be deemed that the second disposition of deficits has the same effect as the first disposition of deficits which differs from the effect of the cancellation. Therefore, the benefit in the lawsuit to seek the cancellation of the first disposition of deficits cannot be deemed to have ceased to exist on the ground that the second disposition of deficits was

[1] Article 26 subparagraph 1 of the former Framework Act on National Taxes (amended by Act No. 5189 of Dec. 30, 1996), Article 18 and Article 26 subparagraph 1 of the Framework Act on National Taxes (amended by Act No. 5189 of Dec. 30, 1996), Article 86 (2) of the former National Tax Collection Act (amended by Act No. 6053 of Dec. 28, 1999), Article 86 (2) of the National Tax Collection Act (amended by Act No. 6053 of Dec. 28, 1999), Article 26 subparagraph 1 of the former Framework Act on National Taxes), Article 18 and Article 26 subparagraph 1 of the Framework Act on National Taxes (amended by Act No. 5189 of Dec. 30, 199), Article 86 (2) of the former National Tax Collection Act (amended by Act No. 5189 of Dec. 28, 1996)

[1] Supreme Court Decision 9Da53667 delivered on January 28, 2000 (Gong2000Sang, 576) Supreme Court Decision 200Ma5809 Delivered on March 20, 2001

Plaintiff (Attorney Kim Sung-woo et al., Counsel for the plaintiff-appellant)

The head of Gangnam Tax Office

Seoul High Court Decision 2001Nu6847 delivered on October 25, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Summary of the judgment of the court below

According to the reasoning of the judgment below, the court below revoked the plaintiff's total income tax in 1992 as 122,443,372, and additionally imposed 120,898,920 won and notified the difference between the amount already paid by the plaintiff and 120,898,920 won as a result of the plaintiff's 20,000,000 won and 31,768,887 won for the non-reported income in 1992 as the representative director, and then revoked the 20,000,000 won for 190,000 won for 20,000 won and 9,000 won for 20,000 won for 20,000 won for 19,000 won for 20,000 won for 20,000 won for 19,000 won for 20,000 won for 5,000 won for 20.

2. The judgment of this Court

However, we cannot accept the judgment of the court below for the following reasons.

Article 26 subparagraph 1 of the former Framework Act on National Taxes (amended by Act No. 5189, Dec. 30, 1996; hereinafter "the former Framework Act on National Taxes") provides that "where a person finds that there had been any other seizable property at the time of the disposition on default, he/she shall without delay cancel the disposition and make a disposition on default despite the exclusion from the grounds for extinguishment of liability for tax payment," such disposition shall be maintained as it is under Article 86 (2) of the former National Tax Collection Act (amended by Act No. 6053, Dec. 28, 1999; hereinafter "when another property is found to be seized in accordance with the purpose of the amendment of the Framework Act on National Taxes (amended by Act No. 5189, Dec. 30; hereinafter "the amended National Tax Collection Act") has expanded to "when another property for which the grounds for cancellation of the disposition on default is found to be less than 00 days after the completion of the procedure for the disposition on default, it shall not be cancelled 200 years after the amendment of the National Tax Collection Act.

In this case, as long as the first disposition of deficits was made on June 26, 1998 when the former National Tax Collection Act was in force, the former National Tax Collection Act is applied even with respect to the cancellation of the disposition of deficits, but the disposition of cancellation in this case which was made on the ground that business income was generated to the plaintiff after the first disposition of deficits was made is unlawful in violation of Article 86 (2) of the former National Tax Collection Act.

On the other hand, the second disposal of deficit, unlike the first disposal of deficit, is carried out after the enforcement of the amended National Tax Collection Act and is newly acquired after the disposal, it is possible to cancel such disposal and proceed with the disposition for arrears, and it cannot be deemed as the same as the first disposal of deficit in relation to the cancellation of the second disposal of deficit.

Therefore, it cannot be deemed that the interest in the lawsuit was extinguished to seek the revocation of the revocation of the first disposition of deficits on the ground that the second disposition of deficits had been made. Accordingly, the court below erred by misapprehending the legal principles on the disposal of deficits and the revocation thereof under Article 86 of the former National Tax Collection Act, and it is obvious that this affected the conclusion of the judgment.

The grounds of appeal pointing this out are with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)