It cannot be deemed that a long-term unpublic auction situation after seizure was an expression of public opinion, such as the waiver or extinguishment of tax claims by the tax authorities.

A disposition rejecting an application to cancel the attachment is justifiable, on the grounds that the tax authority did not request the taxpayer to deliver the real estate to the auction case of other property in the absence of a long-term public sale, etc.

Article 24 of the National Tax Collection Act, requirements for cancellation of seizure under Article 53 of the National Tax Collection Act.

2014Guhap108 Revocation of Disposition rejecting an application to cancel the attachment

】 】

The director of the tax office

November 6, 2014

November 27, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On December 30, 2013, the defendant's rejection disposition against the cancellation of attachment against the plaintiff is revoked.

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if the purport of the whole pleadings is added to each entry of Gap evidence Nos. 1 through 4, 29, 30, and Eul evidence Nos. 1 through 6 (including the number of branch numbers; hereinafter the same shall apply).

A. Sale and purchase of the instant land

The plaintiff purchased from AA on September 8, 1997 the land x Gun x x Gun 】 area 】 160-6 Miscellaneous land x 500 m26 m26 m26 m26 m26 m26 m26 m26 m26 m26 m26 m26 m26 m26 m26 m26 m22 m2, and hereinafter referred to as the "land in this case"). The plaintiff purchased the land in this case under the name of the plaintiff on September 8, 199 x the same day x the head of the Gun upon filing a land transaction contract report, and completed the registration of ownership transfer due to sale under the name of the plaintiff on September 26, 1997.

(b) AA taxation;

(1) On the other hand, on January 16, 1997, the Defendant calculated the capital gains tax base for the transfer income tax corresponding to the year 1996 by KRW 1,802,119,825 of AA, the former owner of the instant land (the former owner), and notified AA to pay capital gains tax of KRW 892,059,910 by January 31, 1997 (hereinafter “instant taxation disposition”).

The defendant, who did not pay AA, urged AA to pay the transfer income tax for the year 196 until February 20, 1997. On September 8, 1997, the seizure of the land of this case was made in accordance with Article 24(1)1 of the National Tax Collection Act, and the seizure registration of the land of this case was completed on September 10, 1997, before the completion of the registration of ownership transfer (hereinafter "the seizure of this case" and "registration of this case").

Consolidatedly, the defendant shall thereafter be entitled to the transfer income tax of the AA in 196 on May 25, 1998.

712,713,550 won, and 17,49,840 won on September 30, 1999, and 1,188,000 won on September 25, 2001, and 731,501,390 won in total, including 31.10,000 won in arrears on March 31, 2003, were written off (hereinafter referred to as "written disposal in this case").

C. Disposition of refusal and request for review of this case

(1) On November 6, 2013, when the Defendant requested the Korea Asset Management Corporation to sell the instant land by proxy, the Plaintiff applied for the cancellation of the instant seizure to the Defendant on December 5, 2013, and the cancellation of the said request for public sale by proxy. However, on December 30, 2013, the Defendant issued a disposition rejecting the Plaintiff’s request for cancellation of attachment on the ground that “the instant seizure is not subject to Article 24(5) of the National Tax Collection Act, but does not meet the requirements for cancellation of attachment under Article 53 of the same Act” (hereinafter “instant rejection disposition”).

D. On February 18, 2014, the Plaintiff filed a request for review with the Commissioner of the National Tax Service for the revocation of the instant refusal disposition, but the said request for review was dismissed on April 8, 2014 (hereinafter “instant national tax review”).

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

In light of the following, the Plaintiff asserts that the Defendant’s instant disposition rejecting the cancellation of the attachment was unlawful.

(1) The Defendant did not state the date of imposition, confirmation, notification date, etc. of capital gains tax on AA. Thus, the instant taxation on AA is null and void as it was imposed without any grounds, and the instant attachment disposition based on this is also null and void or lost, and its attachment should be cancelled as it constitutes “the case where the need for attachment becomes unnecessary” under Article 53(1)1 of the National Tax Collection Act.

D. Although the instant taxation disposition is not null and void, the Defendant did not request the issuance of dividends in several voluntary auction procedures for the real estate owned by AA and the instant land after the registration of the instant seizure, and formed the appearance of the instant land as having no tax claim against AA any longer than that of the Defendant, as it did not proceed to the auction procedure. The Plaintiff trusted the above appearance formed by the Defendant, cancelled the limited real right on the instant land, and increased the value of the instant land by endeavoring to file a lawsuit to remove a building on the land. The instant refusal disposition, which the Defendant refused to cancel the attachment of the instant land in violation of the aforementioned implied opinion indication, is unlawful as it goes against the principle of trust and good faith.

Article 24(5)2 of the National Tax Collection Act, since the defendant did not confirm the national tax within three months after the registration of the seizure of this case and notify AA as the delinquent taxpayer, the defendant must release the seizure of this case.

Applicant The defendant made the instant write-off against AA, and since AA's obligation to pay capital gains tax for the year 1996 has ceased to exist due to the above write-off, the attachment of this case must be cancelled. Even so, even if it is not so, in the case of write-off for a period that has been amended by Act No. 5189 of Dec. 30, 1996, and the National Tax Collection Act was amended by Act No. 6053 of Dec. 28, 1999, in order for the defendant to take a new procedure for taking a disposition on default, the defendant must take a legitimate procedure for taking a disposition on default, and the defendant shall not take a new procedure for default.

B. Relevant statutes

Attached Form 3 is as specified in the relevant Acts and subordinate statutes.

C. Determination

(1) Whether the instant taxation disposition and seizure are invalid or not

In an administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the invalidity confirmation thereof, the Plaintiff is liable to assert and prove the reason why the administrative disposition is null and void (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010). There is no evidence to acknowledge that the instant disposition is null and void and that the instant disposition is null and void. Accordingly, the Plaintiff’s assertion based on the premise that the instant disposition is null and void is without merit.

Whether the refusal disposition of this case violates the principle of good faith

In general, in order to apply the principle of trust and good faith to the acts of a tax authority in a tax law relationship, the tax authority must issue a public opinion list that is the subject of trust to taxpayers, and the taxpayer should not be responsible for the taxpayer to believe that the name of the opinion list is justifiable, and what is the taxpayer should be done by the taxpayer, and the tax authority should make a disposition against the opinion list, thereby infringing the taxpayer's interest (see, e.g., Supreme Court Decisions 2001Du9103, Nov. 26, 2002; 91Nu9848, Apr. 28, 1992; 91Nu9848, Apr. 28, 1992). The fact that the tax authority, one of the above requirements, expressed the public opinion that the taxpayer is the subject of trust, must be argued and attested by the taxpayer (see, e.g., Supreme Court Decision 91Nu9824, Mar. 31, 1992).

Meanwhile, comprehensively taking account of the overall purport of arguments as to Gap evidence Nos. 2 and 4 through 23, it shall be acknowledged that the voluntary auction procedure was commenced upon voluntary auction application for the real estate owned by Eul including the land of this case, but the defendant did not file a report of right and request for delivery in each of the above procedures, and the ownership of the land of this case was transferred after the registration of seizure was completed. However, the plaintiff knew that the defendant had a tax claim against AA at the time of the registration of transfer of ownership was known at the time of the registration of transfer of ownership, ② the defendant was not obliged to commence a public auction within a certain period after the seizure was conducted, ③ the defendant did not have a duty to file a request for issuance if the seizure was registered as a procedure of disposition of national tax in arrears, ③ the head of a tax office failed to submit evidentiary documents that could calculate the amount of national tax in arrears by the date of auction, and ④ the plaintiff did not have a duty to obtain a tax claim or to obtain a tax claim for the transfer of the land of this case under the premise that the defendant did not receive a tax claim for delivery.

• Whether the seizure should be cancelled because the national tax should not be determined

Article 24 (2) of the National Tax Collection Act provides that "if it is deemed impossible to collect national taxes after the determination of national taxes due to a cause falling under any of the subparagraphs of Article 14 (1) of the same Act, the taxpayer's property may be seized to the extent of the estimated amount of national taxes." Article 24 (5) 2 of the National Tax Collection Act provides that "if the taxpayer's property is seized before the determination of national taxes, the director of the tax office shall immediately release the property from the attachment, if the national taxes to be collected by the attachment are not determined until three months have passed from the date of the attachment."

On January 16, 1997, the defendant calculated capital gains tax base for the year 1996 with AA on January 16, 1997, prior to the seizure of this case. After notifying AA of the payment of capital gains tax of KRW 892,059,910 by January 31, 1997, the taxation claim was confirmed, and the attachment of this case based on Article 24 (1) 1 of the National Tax Collection Act after AA urged AA to pay it by February 20, 1997. (The plaintiff asserted that the statutory due date for the payment of capital gains tax was 1,802,19,825 won before the seizure of this case, or that it was not attributable to the changed date of taxation claim under Article 14 (1) 1 of the National Tax Collection Act, but it cannot be argued that it was not attributable to the defendant's assertion that it was not attributable to the new date of national tax examination or the changed date of taxation claim under the process of the lawsuit.

Therefore, the seizure of this case is not a case where the defendant seizes the taxpayer's property before the national tax is determined pursuant to Article 24 (2) of the National Tax Collection Act, and there is no room to apply Article 24 (5). Thus, the plaintiff's assertion based on this premise is without merit.

Applicant Whether the obligation to pay is extinguished due to write-off

㈎ 피고가 AAA의 체납세액에 대하여 결손처분을 하였음은 앞서 본 바와 같다. 그러나 1996. 12. 30. 법률 제5189호로 개정되기 전의 국세기본법 제26조 제1호는 결손처분이 된 때를 납부의무의 소멸사유로 규정하고 있었으나 위 개정으로 인하여 결손처분이 납부의무의 소멸사유에서 제외되어, 결손처분은 조세채무를 종국적으로 소멸시키는 처분은 아니고, 체납처분절차의 종료라는 의미만을 갖게 되었다(대법원 2002.9.24. 선고 2001두10066 판결 등 참조). 따라서 결손처분된 조세라도 납세의무가 종국적으로 소멸된 것은 아니므로, 이 사건 결손처분이 있었다고 하여 국세징수법 제53조 제1항 제1호의 '납부, 충당, 공매(公賣)의 중지, 부과의 취소 또는 그 밖의 사유로 압류할 필요가 없게 된 경우'에 해당한다고 할 수 없다.

"㈏ 한편, 1996. 12. 30. 법률 제5189호로 개정되기 전의 국세기본법 제26조 제1호에서 납세의무의 소멸사유 중 하나로 규정하고 있던결손처분'이 개정 법률에서는 납세의무의 소멸사유에서 제외되었음에도 불구하고,결손처분 당시 다른 압류할 수 있는 재산이 있었던 것을 발견한 때'에는 지체 없이 그 처분을 취소하고 체납처분을 하여야 한다고 규정한 구 국세징수법(1999. 12. 28. 법률 제6053호로 개정되기 전의 것) 제86조 제2항은 그대로 존치되어 오다가, 국세징수법이 1999. 12. 28. 법률 제6053호로 개정되면서 결손처분의 취소사유가 개정 국세기본법의 취지에 맞추어압류할 수있는 다른 재산을 발견한 때'로 확대되었는바, 국세기본법이 개정된 후 국세징수법이 위와 같이 개정되기까지의 기간 동안에 행해진 결손처분의 경우에는 그 결손처분으로 인하여 납부의무가 소멸되지는 않는다 하더라도, 그 취소와 관련하여서는 구 국세징수법의 규정에 따라 결손처분 당시 다른 압류할 수 있는 재산이 있었던 것을 발견한 때에 한하여 결손처분을 취소하고 체납처분을 다시 할 수 있을 뿐(대법원 2005.02.17. 선고 2003두12363 판결)임은 원고의 주장과 같다. 그러나 위 국세징수법 해당조항은 '압류할 수 있는 다른 재산을 발견한 경우 결손처분의 취소하고 체납처분을 하여야 한다'규정하고 있는바, 이는 결손처분 당시 다른 압류할 수 있는 재산이 있었던 것을 발견하거나(개정 전), 압류할 수 있는 다른 재산을 발견한 때(개정 후)에는 결손처분을 취소하고 그 발견한 다른 재산에 대하여 재차 압류를 하여 체납처분절차를 새로이 진행하기 위한 결손처분 취소의 경우를 의미한다고 할 것이다. 따라서 위 국세징수법의 규정이 '기존의' 압류재산에 대한 환가절차에도 적용된다고 볼 것은 아니므로, 이를 전제로 한 원고의 이 부분 주장도 이유 없다.",3. 결론

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

Relevant statutes

▣ 국세징수법

Article 14 (Collection before Payment Period) (1) If a taxpayer falls under any of the following subparagraphs, the head of a tax office may collect the determined national tax even before the payment period:

1. When he is delinquent in national taxes; and

2. Where a taxpayer is subject to a disposition for arrears of local taxes or public charges;

3. When compulsory execution is being effected;

4. When a disposition of suspension of transaction is imposed at a clearing house under the Bills of Exchange and Promissory Notes Act or the Check Act;

5. Where an auction has started;

6. Where a corporation is dissolved.

7. 국세를 포탈(����)하려는 행위가 있다고 인정될 때

8. If the taxpayer has neither a domicile or temporary domicile nor a tax manager in Korea.

Article 24 (Attachment) (1) The head of a tax office (including the director of a regional tax office in cases of delinquent taxpayers prescribed by Presidential Decree, taking into account the period of delinquency and the amount in arrears; hereinafter the same shall apply) shall seize the taxpayer's property

1. Where the taxpayer fails to completely pay national taxes and the additional dues by the designated period after receiving a notice of demand (including a peremptory notice);

2. Where a taxpayer fails to pay completely the tax by the designated date after receiving a payment notice prior to the payment period under Article 14 (1);

(2) If the head of a tax office deems that a taxpayer cannot collect national taxes after the determination of national taxes due to a cause falling under any of the subparagraphs of Article 14 (1), he/she may seize the taxpayer's property to the extent of the estimated amount of national taxes.

(5) The head of a tax office shall immediately release the property from attachment under paragraph (2) in any of the following cases:

2. Where the amount of national taxes to be collected by the seizure is not determined until three months have passed after the date of the seizure.

Article 53 (Requirements for Release from Attachment) (1) The head of a tax office shall immediately release the attachment in any of the following cases:

1. 납부, 충당, 공매(公��)의 중지, 부과의 취소 또는 그 밖의 사유로 압류할 필요가 없게 된 경우

2. If the justification for the third person's claim on the ownership under Article 50 is deemed reasonable;

3. If the third person proves that he/she has obtained a favorable judgment of the court in the lawsuit on the ownership against the defaulted taxpayer.

▣ 국세징수법 (1999. 12. 28. 법률 제6053호로 개정된 것)

(1) In case where a cause falling under any of the following subparagraphs exists, the director of the tax office may make disposal of deficit for the taxpayer:

1. Where the disposition for arrears is terminated, and the distributed money is short of paying the delinquent amount;

2. Where it falls under Article 85;

3. When an extinctive prescription of right to the collection of national tax is completed.

4. Where it is deemed that there is no possibility of collection as prescribed by the Presidential Decree.

(2) If another seizable property is found after the disposal of deficit under paragraph (1), the director of the tax office shall cancel the disposal without delay and effect a disposition for arrears.

▣ 국세징수법 (1999. 12. 28. 법률 제6053호로 개정되기 전의 것)

(2) If the head of a tax office finds, after making a disposition on deficits under paragraph (1), that there was other seizable assets at the time of the disposition on deficits, he shall cancel without delay such disposition and effect a disposition on default.

▣ 국세기본법

Article 26 (Extinguishment of Liability to Pay National Taxes) The liability to pay national taxes, surcharges, or expenses for disposition on default shall expire at any of the following cases:

1. When the payment, appropriation, or imposition is revoked;

2. Where the period in which a national tax may be assessed under Article 26-2 expires without any assessment;

3. When an extinctive prescription of right to the collection of national tax is completed under Article 27.

▣ 국세기본법 (1996. 12. 30. 법률 제5189호로 개정되기 전의 것)

Article 26 (Extinguishment of Liability to Pay National Taxes, Additional Dues, or Expenses for Disposition on Default) The liability to pay such national taxes, additional dues, or expenses for disposition on default shall expire

1. Where the payment, appropriation, cancellation of the imposition or disposal of deficit is made;