The validity of the designation of a person liable for physical tax payment against a mortgagee on the ground that a tax disposition was imposed against the deceased and that disposition was in arrears.

The physical tax liability of a mortgagee under Article 42(1) of the Framework Act on National Taxes requires a shortage of the amount to be collected even if the taxpayer fails to pay national taxes and conducts the disposition on default of other property by the taxpayer. <3> The assessment notice of tax imposed on the deceased who died as a security for transfer of less than one year prior to the time limit for payment of national taxes is null and void. Thus, if the person who created the security for transfer gives a notice of tax imposition after the death of the person who created the security for transfer, the deceased cannot be deemed to have failed to pay taxes. Thus, the disposition imposing physical tax on the person who created the security for transfer of property is null

Article 42 (1) of the Framework Act on National Taxes

Plaintiff

Head of Daegu Tax Office

Daegu High Court Decision 82Gu229 delivered on February 23, 1984

All appeals are dismissed.

The costs of an appeal shall be borne by each appellant.

The grounds of appeal are examined.

1. As to the Plaintiff’s appeal:

The court below confirmed that the plaintiff did not receive a notice of decision or extension of the trial period until August 8, 1980, which is the last day of the extended trial period, and concluded August 9, 1980 as the initial date of the administrative litigation of this case. The review of the records in comparison with the records is acceptable, and it cannot be said that there were errors in documentary evidence, such as the theory of lawsuit.

2. As to the Defendant’s appeal:

Article 42(1) of the Framework Act on National Taxes provides that where a taxpayer is delinquent in paying the national taxes, additional dues or disposition fees for arrears, if any property transferred to the taxpayer is in excess of the amount to be collected even after the disposition on default is conducted on other property of the taxpayer, such property transferred to the taxpayer may be collected in accordance with the National Tax Collection Act: Provided, That this provision shall not apply to any property transferred to the taxpayer as the object of security one year prior to the due date for payment of the national taxes. This provision is so-called “physical liability for tax payment by the so-called mortgagee” (1) requirements are clear that the taxpayer is in short of the amount to be collected even if the disposition on default on other property of the taxpayer is conducted, and (3) requirements are clear that such property transferred to the taxpayer prior to the due date for

According to the decision of the court below, even though the non-party died on February 24, 1977, the non-party imposed the tax amount of KRW 18,467,956,703 on June 8, 1977, and the tax amount of KRW 18,467,928 and the defense tax amount of KRW 3,926,917, and each tax amount of KRW 3,926,917 on January 25, 1978. Since it is obvious that the above tax assessment and assessment was made after the death of the non-party, it cannot be deemed that the above non-party was in arrears of the above tax, and therefore the above non-party cannot be deemed to be null and void of the tax assessment and assessment. Therefore, even if the physical tax payment requirements of the non-party did not occur, the disposition of the so-called mortgagee's physical tax imposition imposed on the plaintiff is illegal, and this is a significant and obvious defect. Therefore, the judgment of the court below is justified.

In theory, Article 24 (1), (2), and (5) of the Framework Act on National Taxes, Article 12 (1) of the Enforcement Decree of the same Act, and Article 37 (2) of the National Tax Collection Act are attacked on the original market. However, it is clear that these provisions are premised on the succession of tax liability due to inheritance, which is related to the succession of tax liability by inheritance, and it is not related to the physical tax liability of the mortgagee. Therefore, the theory of lawsuit is groundless.

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

Justices Jeon Soo-hee (Presiding Justice)