2018Du49154 Revocation, etc. of revocation of a tax agent disposition

Plaintiff:

Seoul Regional Tax Office

Seoul High Court Decision 2014Nu65617 Decided June 12, 2018

January 30, 2020

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. Relevant Acts and the circumstances of this case;

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. Article 3 of the Certified Tax Accountant Act (amended by Act No. 11209, Jan. 26, 2012) provides that “A person who has passed a qualifying examination for certified tax accountants under Article 5 (No. 1) and “A person qualified as a lawyer (No. 3)” (only subparagraph 3 was deleted at the time of being amended by Act No. 15288, Dec. 26, 2017).

Article 6(1) of the Certified Tax Accountant Act (amended by Act No. 11610, Jan. 1, 2013) provides that "where a person qualified as a certified tax accountant intends to commence tax agent by passing a qualifying examination for certified tax accountants under Article 5, matters prescribed by Presidential Decree shall be registered with the certified tax accountant registration ledger kept at the Ministry of Strategy and Finance." Article 20(1) of the Certified Tax Accountant Act (amended by Act No. 16103, Dec. 31, 2018) and Article 20(1) of the Certified Tax Accountant Act (amended by Act No. 9348, Jan. 30, 2009) are prohibited from providing tax agent services unless a person has registered pursuant to Article 6: Provided, That this shall not apply where a person conducts tax agent services as a lawyer pursuant to Article 3 of the Attorney-at-Law Act and where a person is registered pursuant to Article 20-

Article 6(1) of the Certified Tax Accountant Act and the main sentence of Article 20(1) of the same Act concerning "Attorney" (hereinafter collectively referred to as "the legal provision of this case") are registered only with a person who has passed the qualifying examination for certified tax accountants (hereinafter referred to as "general certified tax accountant"), and provide that a person who has not registered his/her business may not provide tax agent services unless he/she has registered his/her business.

B. From December 31, 2003 to December 31, 2017, the Plaintiff, an attorney qualified as a certified tax accountant, applied for renewal of tax agent registration to the Commissioner of the National Tax Service. On May 21, 2014, the Defendant rendered the instant disposition rejecting the Plaintiff’s application pursuant to the instant legal provisions. During the lawsuit seeking revocation of the instant disposition, the Plaintiff filed an application for adjudication on the unconstitutionality of the instant legal provisions with the lower court, and the lower court accepted the application and filed a motion for adjudication on the unconstitutionality of law.

C. On April 26, 2018, the Constitutional Court: (a) determined that the instant legal provision infringes on the freedom of choice of an attorney-at-law qualified as a certified tax accountant; and (b) declared that the instant legal provision continues to be applied until the legislator revised the law with the deadline on December 31, 2019 (see Constitutional Court Decision 2015Hun-Ga19, Apr. 26, 2018; hereinafter referred to as “Unconformity with the Constitution”). However, the National Assembly did not amend the instant legal provision under the Certified Tax Accountant Act by December 31, 2019.

2. Whether the instant disposition is lawful

A. Even if a provisional decision of inconsistency with the Constitution was rendered with respect to a non-criminal provision which became final and conclusive but the amendment became null and void due to the absence of an improved legislation, its effect is limited to the future, and there is no reason to treat the provision differently (see Supreme Court Decision 2012Do7455, Oct. 11, 2012). Meanwhile, in a case where a decision of inconsistency with the Constitution with the Constitution to suspend the application of a non- penal provision was rendered but the amendment was made without any improvement of the unconstitutionality, but the amendment was made without any legislative amendment, it is necessary to prevent any legal gap between the time when the decision of inconsistency with the Constitution and the time when the legal provision becomes null and void, and such legal provision becomes retroactively null and void. In a case where a provisional decision of inconsistency with the Constitution with the Constitution with the Constitution becomes final and void even if a non- penal provision becomes final and conclusive, if the legal provision becomes null and void due to the suspension of its application.

B. According to the unconstitutionality of the instant legal provisions, the Constitutional Court’s ruling of inconsistency with the Constitution and the grounds for provisional application as to the instant legal provisions, it is necessary to allow the registration of a general certified tax accountant to continue to apply the instant legal provisions until December 31, 2019, even though the Constitutional Court confirmed the unconstitutionality of the instant legal provisions. The grounds for respect of legislative formation rights concerning the scope of tax agent services to be allowed to a certified tax accountant qualification attorney and the specific procedures and contents necessary to grant proxy authority to a certified tax accountant are related only to the need to make a decision of inconsistency with the Constitution, which contains the purport of promoting legislative improvement instead of making a simple decision of unconstitutionality as to the instant legal provisions, and cannot be viewed as the grounds for continuing to maintain the status of infringement of fundamental rights due to the instant legal provisions until the legislative amendment is implemented.

In the decision of inconsistency with the Constitution of the Republic of Korea, the part ordering the continuance of the legal provisions of this case is a ground provision allowing the continuous registration of a general tax accountant. On the contrary, the part prohibiting the full-time and uniform tax agent business of a certified tax accountant in the legal provision of this case should be deemed to be still suspended.

C. In light of the aforementioned legal principles, since the legal provisions of this case comprehensively and uniformly prohibit the tax agent services by attorneys holding a qualification as a certified tax accountant become retroactively null and void due to the time when the decision of inconsistency with the Constitution was rendered, the legal provisions of this case cannot be applied as they are to the instant case. Therefore, the Defendant’s disposition of this case which rejected the Plaintiff’s application for renewal of registration of tax agent services based on the premise that the legal provisions of this case are applied to this case.

D. Although the reasoning of the lower judgment is inadequate, the conclusion that the instant disposition was unlawful is justifiable. The first ground for appeal on a different premise is rejected.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won

Justices Jo Hee-de

Justices Kim Jae-hyung

Justices Min You-sook