Liability to pay surcharges and increased additional charges

Since the calculation of the amount of tax is based on the premise that a tax liability arises, it is reasonable to apply the Act enforced at the time when a tax liability for additional dues or aggravated additional dues occurs in calculating the amount of tax.

Article 21 of the National Tax Collection Act

1. The plaintiff's claim of this case is dismissed.

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

The defendant shall decide to pay to the plaintiff 15,565,30 won with interest of 20% per annum from the next day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. The plaintiff's assertion

원고는, 전북 ○○군 ○○읍 ○○리 ㅇㅇㅇ 답 968㎡를 1990. 3. 1. 매수하여 같은 달 9. 소외 조○○에게, 전북 ㅇㅇ군 ○○읍 ○○리 ㅇㅇㅇ-d 답 1,597㎡를 1990. 5. 3. 매수하여 같은 날 소외 윤○○ 김○○에게 각 미등기 전매하였는데, 그 후 피고는 실사를 거쳐 1994. 1. 28. 원고에게 양도소득세 부과 처분을 함에 있어서는 위 미등기전매 행위가 있었던 당시 시행되던 소득세법을 적용하여 양도소득세를 산정, 고지하였으면서도, 그 후 중가산금에 대하여는 위 미등기전매 당시 시행되던 국세징수법(1986. 12. 31. 법률 제3912호로 개정된 것, 이하 "구 국세징수법"이라고 한다) 제22조를 적용하지 않고, 중가산금 산정 당시 시행되던 국세징수법(1993. 12. 31. 법률 제4673호로 개정된 것, 이하 "개정된 국세징수법"이라고 한다) 제22조를 적용하여 금액을 산정한 후 공매처분 등을 통하여 개정된 국세징수법에 의한 중가산금과 구 국세징수법에 의한 중가산금의 차액 상당인 15,565,330원을 수령하였으므로, 결국 피고는 법률상 원인 없이 위 15,565,330원을 취득하였다고 주장한다(원고는 중가산금의 산정에 관한 적용 법률에 대하여만 다투나, 이하에서는 가산금과 중가산금을 통하여 그 산정에 관한 적용 법률을 살펴보기로 한다).

2. Determination

Unless otherwise expressly provided, the tax amount shall be calculated by applying the relevant Acts and subordinate statutes which were in force at the time when the tax liability arises, as the calculation of the tax amount is based on the premise that the tax liability arises.

As in this case, in the event that a taxation disposition is made because the plaintiff did not make a preliminary return of capital gains tax and it is found that the cause of taxation is late by the tax office, the income tax law that was enforced at the time when the liability to pay capital gains tax arises, i.e., the amount of the principal tax at the time when the liability to pay capital gains tax occurs, but in the meantime, the additional dues or increased additional dues provided for in Articles 21 and 22 of the National Tax Collection Act can only be levied if the national tax is not paid by the due date. In this case, the additional dues or increased additional dues cannot be created before February 28, 1994, which is the due date of the principal tax payment, and since March 1, 1994, the law that was enforced at the time when the liability to pay capital gains tax is not determined by the tax office, even if the additional dues or increased additional dues are calculated by the law, the same applies to the calculation of the additional dues or increased additional dues, taking into account the fact that the additional dues and increased additional dues are a penalty for arrears.

However, Article 22(1) of the amended National Tax Collection Act, which provides that "The Act shall enter into force on January 1, 1994," and Article 22(2) provides that "the amended provisions of Article 22(1) (referring to the amended provisions concerning increased tax) shall apply to the first delinquent national tax after the enforcement of this Act." Thus, it is reasonable to apply Article 22(1) of the amended National Tax Collection Act, which was in force after the expiration of the payment period of the principal tax in calculating increased tax, to which the Defendant received money equivalent to the difference between the increased tax amount under the amended National Tax Collection Act and the increased tax amount under the former National Tax Collection Act through the public sale disposition, etc., and ultimately, it cannot be deemed that the Defendant would benefit without any legal grounds.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.