The lawfulness of a seizure disposition and the expiration of the statute of limitations

The extinctive prescription of the right to collect value-added tax upon the instant disposition is interrupted at the time of the above seizure and the cause of suspension has not been terminated even until now, and the instant disposition cannot be deemed to have been conducted after the expiration of the extinctive prescription of the right to collect national

Article 24 of the National Tax Collection Act

Daejeon District Court-2017-Gu 10451 Invalidity of Attachment Disposition

AA

DD Head of the tax office

2018.04.05

2018.04.26

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

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

Cheong-gu Office

around January 5, 2017, the attachment disposition taken by the Defendant on January 5, 2017

I confirm that such a disposition is void. In addition, the disposition shall be revoked.

1. Details of the disposition;

A. On August 1, 1993, the Plaintiff completed business registration for the operation of the CCC hotel with the director of the BB tax office on August 1, 1993 and operated the said hotel until November 15, 1996.

B. On December 18, 1998, the Defendant imposed CCC Tourist Hotel KRW 216,982,610 on the Plaintiff in 196 (hereinafter “instant disposition”). The instant disposition was taken in the name of “BB director of the tax office,” but the competent tax office changed into DB director’s name on April 7, 2014, the previous disposition taken in the name of BB director of the tax office is deemed both the Defendant’s disposition.

C. On June 2, 1999, the Defendant attached each of the Plaintiff’s shares out of 56,231 m2, Gagri Ga F-1 m2, Gagri 7,464m2, Y II-Gun, JJ-gun, JJ-JJ-J, Y25-2, Gagri 625-2, Gagri 7,464m2, 50 m200m2, N33-6, 69m2, NAM-Eup Nri Nri Do, MM-Gu Do, Y-33-6 m2, 335-2, 400m2, 335-13 m2, and 671m2 of the same Ri.

D. After October 20, 2016, the Defendant completed the inheritance registration on October 20, 2016 on the attached real estate indicated on the Plaintiff’s inherited property (hereinafter “instant real estate”), by subrogation of the heir, and seized the Plaintiff’s shares on October 25, 2016. After December 30, 2016, the Defendant cancelled the attachment of the Plaintiff’s shares on October 25, 2016, and again seized the Plaintiff’s shares (hereinafter “instant attachment disposition”). The Plaintiff appealed against the instant disposition and the attachment disposition, but was dismissed as to the instant disposition on June 8, 2017, and was dismissed as to the instant attachment disposition.

[Ground for Recognition: Facts without dispute, Gap evidence Nos. 2, 5, 7, 8, 9, and Eul evidence Nos. 1 through 7 (including paper numbers)]

2. Relevant statutes;

The entries in the attached statutes are as follows.

3. Determination as to whether the attachment disposition of this case is illegal and void as a matter of course

A. Whether the seizure disposition of this case becomes null and void due to the rightful invalidity of the disposition of this case

(1) The plaintiff's assertion

The Plaintiff asserted that, at the time of the instant disposition, since the actual operator of the CCC tourist hotel was the Red Profit Comprehensive Construction Business Co., Ltd. (hereinafter referred to as “OO Construction”), the instant disposition should be imposed on OO construction rather than the Plaintiff, and that the instant disposition violates the principle of substantial taxation, and thus, the instant disposition of seizure is null and void as a matter of course. Furthermore, as long as the instant disposition should be imposed on O construction, the Plaintiff asserts that the taxpayer of value-added tax is also an Oconstruction, so the instant disposition of seizure is ultimately subject to the Plaintiff’s property, not the taxpayer.

(2) Determination

The disposition of tax imposition and the disposition of tax collection on default, such as attachment, are separate administrative disposition, and thus, it cannot be deemed that the disposition of tax imposition is unlawful unless the disposition of tax imposition is revoked even if there is any defect in the disposition of tax imposition. However, if the disposition of tax imposition is merely a procedure for the execution of the disposition of tax imposition and it is null and void

The disposition on default for the enforcement of this portion is also null and void (Supreme Court Decision 87Nu383 Decided September 22, 1987).

(7) However, since the defect of a taxation disposition is not succeeded to the disposition on default, it cannot be deemed unlawful unless the disposition on default is revoked (see, e.g., Supreme Court Decision 88Nu12110, Jul. 11, 1989). Therefore, in order to seek the invalidity of the disposition on the attachment of this case, there must be defects in the disposition on the instant case, and in an administrative litigation seeking the invalidity of the disposition on the ground that the disposition on the attachment of this case is void as a matter of course, the plaintiff is liable to assert and prove the grounds for invalidity (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010).

However, the evidence submitted by the Plaintiff alone is insufficient to recognize that there was a significant and apparent defect in the instant disposition. Rather, comprehensively taking account of the overall purport of the entries and arguments in Gap evidence Nos. 2, 5, 7, 8, 9, and Eul evidence Nos. 1 through 7 (including the paper numbers) and Eul evidence Nos. 1 through 7 (including the paper numbers), the Plaintiff contracted for construction of the CCC tourist hotel building to OO construction around June 1992, and issued a promissory note in the name of O construction on January 21, 1994 for the payment of the balance of the construction work, and entered into a transfer contract on the above hotel site and building with OO construction to secure the payment of the said amount of the said amount of the bill. ② O construction was awarded a favorable lawsuit to the Plaintiff for the performance of the registration of transfer of ownership of the said hotel site and building as the execution of the said transfer security by the Seoul District Court Decision 94Ga480, 196.

12. By no later than 31.) It is recognized that the instant disposition imposing value-added tax has been taken.

Ultimately, the instant disposition, based on the transfer of the said hotel to the Plaintiff, which was actually operating the hotel prior to November 15, 1996, which was the date of the said final judgment, cannot be deemed to violate the principle of substantial taxation by taking the instant disposition as taxable subject to taxation. Furthermore, the instant seizure disposition cannot be deemed to have violated the principle of substantial taxation.

It cannot be viewed that there was an error against the property of a third party other than that of the plaintiff. This part of the plaintiff's assertion is rejected.

B. Whether the statute of limitations upon the instant disposition has expired

(1) The plaintiff's assertion

On May 19, 201, the Plaintiff’s existing attachment disposition regarding land EEFF Gagri 2-1 was released on May 19, 201. The Plaintiff asserts that the attachment disposition of this case was unlawful since five years elapsed from the time when the preceding attachment was revoked, which is the extinctive prescription period of national tax collection right under Article 27(1)2 of the Framework Act on National Taxes.

(2) Determination

When the prescription has been interrupted, the period of prescription that has lapsed shall not be included in the interruption thereof, but shall newly run from the time when the cause for interruption ceases to exist (Article 28(2) of the Framework Act on National Taxes, Article 178(1) of the Civil Act), and the effect of the interruption of prescription by the "Attachment" among the causes for interruption of extinctive prescription may be deemed to have expired when the seizure is rescinded or the execution procedure is terminated (Supreme Court Decision 2016Da239840 Decided April 28, 2017).

According to the statement No. 7-6 of the evidence No. 7, the Defendant seized one-third of the Plaintiff’s share of the EEF-si GGri No. 2-1 forest 56,231 square meters prior to the division in order to collect value-added tax from the Plaintiff on June 2, 1999, and on May 19, 201, the fact that the attachment was cancelled due to the public sale of the above share on May 19, 201.

However, at the time of the above seizure, the Defendant attached each of the Plaintiff’s shares in HH II II II II II II II-Gun J-2, Kriju 625-2 7,464 m20 m20 m20 m20 m20 m33-6 m20 m20 m20 m20 m20 m2333-6 m20 m20 m20 m2335-2 m20 m220 m20 m20 m2335-13 m20 m20 m20 m20 m20 m2 of m20 m2. The fact that each of the above seizure continues to exist until the date of the closing of the argument in this case can be recognized in accordance with each of the above statements

Therefore, the extinctive prescription of the right to collect value-added tax according to the disposition of this case is interrupted at the time of the above seizure and the cause for suspension has not yet expired, and it cannot be deemed that the disposition of this case was made after the expiration of the extinctive prescription of the right to collect national tax. This part of the plaintiff'

(c) Whether a disposition of seizure for delinquent amount disposed of as deficit is illegal;

In addition, the Plaintiff asserts that the attachment disposition of this case aims to collect the amount of delinquent taxes disposed of by the Defendant after the public sale of the Plaintiff’s shares in GGri 2-1 forest land in F. 56,231 square meters before the above division, and thus, it is reasonable to collect value-added tax. However, there is no evidence to acknowledge that the remaining amount of delinquent taxes after the completion of the public sale procedure was disposed of as deficit. The Plaintiff’s assertion on this part is without merit.

D. Sub-determination

Therefore, the attachment disposition of this case cannot be deemed to be null and void or cancelled as it is alleged by the Plaintiff.

4. Conclusion

If so, the plaintiff's claim of this case is without merit, and it is dismissed. It is so decided as per Disposition.