Cho Jae-2018-west-4547 ( December 27, 2018)

The cancellation of a write-off or write-off has only the meaning as an administrative procedure.

Even if the procedure for disposition on default was resumed without going through the procedure for cancellation of disposition on default, the attachment disposition, which is the procedure for disposition on default, cannot be deemed null and void merely because it was not going through such procedure merely an internal administrative procedure.

Article 86 of the former National Tax Collection Act

2019Guhap446 Demanding nullification, etc. of seizure

Yang-○

○ Head of tax office

October 11, 2019

November 22, 2019

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

On November 3, 2004, the Defendant confirmed that the part regarding KRW 98,528,240 of the attachment disposition against the claims listed in the separate sheet No. 1 is null and void.

1. Details of the disposition;

A. Determination of Plaintiff’s liability to pay capital gains tax and Defendant’s duty payment notice

1) On January 13, 200, the Plaintiff transferred part of the ○○○-dong ○○○○-dong ○6-9, 06-10, 06-11, 06-28, 06-29, and 03-3 land (hereinafter “○○-dong land”) owned by the Plaintiff, and did not report and pay the transfer income tax. The Defendant: (a) on January 2, 2002, deemed that the Plaintiff transferred all of the remaining land except 06-9 land out of ○○-dong land; (b) on January 31, 2002, the Plaintiff notified the Plaintiff of the payment of the transfer income tax (including additional tax; hereinafter the same shall apply) at KRW 96,639,540 (including additional tax; hereinafter the same shall apply).

2) On September 11, 2001, the Plaintiff reported the transfer income tax upon the transfer of the remaining shares among the above ○○-dong land by a voluntary auction, but did not pay the transfer income tax. On January 4, 2002, the Defendant notified the Plaintiff of the payment of the transfer income tax of KRW 68,138,540 as the payment deadline on January 31, 2002 (hereinafter “instant disposition”).

3) On May 24, 200, the Plaintiff reported and paid the transfer income tax as a result of the transfer of ○○○○○○-1 and five parcels, other than ○○○○-1 land (hereinafter “used land”) to a voluntary auction. On March 6, 2001, the Defendant notified the Plaintiff of the payment of the transfer income tax of KRW 4,621,760 as of March 31, 2001 (hereinafter “third disposition”), which was the payment deadline for the Plaintiff on March 31, 2001 (hereinafter “instant taxation disposition”).

(b) Disposition on deficits and subsequent seizure for the amount in arrears;

1) On February 26, 2002 and June 29, 2002, the Defendant considered that there was no property to seize the Plaintiff by auction, etc., and issued a written disposition of deficits for the delinquent amount of the instant taxation (hereinafter “the instant disposition of deficits”), and thereafter on March 26, 2007, the Defendant issued a written disposition of deficits for part of the remaining additional charges related to the instant disposition of arrears.

2) On November 3, 2004, the Defendant discovered the Plaintiff’s claims listed in the separate sheet No. 1, and seized the claims listed in the separate sheet No. 1 as preserved claims (hereinafter “instant attachment disposition”) with the sum of KRW 245,506,480 [Attachment No. 139,740,620 [Attachment No. 1] + 98,528,240 [Attachment No. 2] + 7,237,620 [Attachment No. 3] as preserved claims.

3) On May 24, 2017, the Defendant collected insurance proceeds of KRW 53,237,620, based on the instant attachment disposition, and revoked the disposition on deficits related to the disposition on disposal of KRW 1,05,057,180, and appropriated the amount in arrears of KRW 5,407,440 for KRW 1,00,00,000, and KRW 3,07,000.

C. Progress and circumstances after the relevant lawsuit

1) On May 23, 2017, the Plaintiff filed a lawsuit seeking confirmation of invalidity of the first disposition and confirmation of invalidity of the attachment disposition based on the third disposition (○ Administrative Court 201○○○○○○○○5) on the ground that a tax notice related to the first and third disposition was not served on May 23, 2017 and rendered a favorable judgment on November 15, 2017. The Plaintiff and the Defendant appealed.

On March 12, 2018, after the pronouncement of the judgment of the court of first instance, the Defendant corrected ex officio the error of the part, etc. not transferred among the land of ○○ Dong by reducing the tax amount to KRW 6,200,450 (including additional taxes and additional dues). Meanwhile, the Plaintiff added and reduced the purport of the claim in the appellate court (○○ High Court 201Nu○○○○8). On August 24, 2018, the appellate court rendered a ruling that the part related to the attachment disposition of this case exceeds KRW 8,965,840 among the part related to the attachment disposition of this case and the part related to the attachment disposition of KRW 39,740,620, which exceeds KRW 139,740,620, which is related to the first disposition. The Defendant revoked ex officio the disposition of October 19, 2018.

2) On March 26, 2018 and October 23, 2018, the Defendant revoked a disposition on deficits related to the second disposition, and subsequently appropriated KRW 50,443,600 for the refund of national tax incurred due to the revocation of the third disposition and the reduction or correction of the first disposition, as the appropriation date of May 26, 2017, and for the entire refund amount retroactively.

3) The Plaintiff asserted the invalidity of the instant attachment disposition, and filed an appeal with the Tax Tribunal on October 12, 2018, but the Tax Tribunal dismissed the appeal on December 27, 2018.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 5 (including branch numbers in case of additional number), Eul evidence Nos. 1 through 3, the purport of the whole pleadings

2. Relevant statutes;

Attached Form 2 shall be as shown in attached Table 2.

3. Whether the seizure disposition of this case is legitimate

A. Summary of the plaintiff's assertion

The Defendant issued the instant disposition related to the instant tax disposition and issued the instant disposition based on the disposition for arrears without revocation. However, Article 86(2) of the former National Tax Collection Act (amended by Act No. 11125, Dec. 31, 201) which was in force at the time of the instant disposition for arrears provides that when any other seizable property is discovered after the disposition for arrears, the disposition for arrears should be revoked without delay and the disposition for arrears should be revoked without delay. Thus, the instant disposition without revocation of the disposition for arrears was in violation of the above provision, and thus, it constitutes null and void because its defect is serious and clear.

Therefore, among the attachment disposition of this case, the amount of KRW 98,528,240, which is the delinquent amount under the second disposition that was not determined as unlawful in the relevant lawsuit, etc., is apparent to be invalid, and there is a legal interest to obtain confirmation thereon from the plaintiff.

B. Determination

1) Article 86 (2) of the former National Tax Collection Act, which 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 (1) of the Framework Act on National Taxes prior to the amendment by Act No. 5189 of Dec. 30, 1996, has been maintained without delay, and it further expanded into "where another property is discovered that "the grounds for cancellation of a disposition on default are in conformity with the purport of the amended Framework Act on National Taxes" upon the amendment by Act No. 6053 of Dec. 28, 1996, the meaning of "the disposal on default becomes less than the end of the procedure for the disposition on default," and only the meaning of "the aforementioned provision on the disposal on default," which provides that "when a person becomes aware of the existence of any other seizable property at the time of the disposition on default, has the right to cancel the disposition on default as an administrative procedure for which the procedure on default was terminated (see, 2013131.

2) In light of the above legal principles, the instant disposition of this case was taken without revocation after the instant disposition of this case was taken on February 26, 2002 and June 29, 2002, and the facts that all of the instant disposition of this case was revoked on or around around 2017 and around 2018 are as seen earlier. However, such disposition of this case and the disposition of revocation are dispositions after the amendment of both the Framework Act on National Taxes and the National Tax Collection Act, and they cannot be deemed administrative disposition merely for disposition of arrears. Although the Defendant re-ended the disposition of this case without going through a separate procedure of cancellation of disposition of this case, it cannot be deemed that the instant disposition of this case, which is the procedure of disposition of arrears, is null and void merely because the Defendant did not go through the procedure of disposition of arrears without going through a separate procedure of cancellation of disposition of arrears. Accordingly, the Plaintiff’s assertion is without merit.

[On the other hand, with respect to "local taxes" on August 9, 2019, the Supreme Court sentenced that in cases where the head of a local government did not comply with procedural requirements for the cancellation of a disposition on deficits and the notification thereof in the course of requesting the issuance of local taxes as part of a disposition on deficits after having made a disposition on deficits and requesting the delivery of local taxes as part of a disposition on default (2018Da272407). However, unlike local taxes, there is no express provision such as the procedure for notification of the disposition on deficits and the cancellation thereof in the National Tax Collection Act, etc., unlike local taxes, in relation to national taxes, the above Supreme Court decided that the head of a local government attempted to receive dividends as part of a request for delivery without the cancellation of disposition on deficits and without the subsequent notification thereof. The above case was subject to the attachment disposition without the cancellation of disposition on deficits, but the fact appears to have been notified to the plaintiff, and even if there is a defect in the procedure of the attachment disposition in this case without the cancellation of disposition on deficits, it is difficult to view of the above legal principles.

4. Conclusion

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