In cases where there is a ground for revocation of a write-off under Article 86 (1) of the National Tax Collection Act, whether the revocation may be made, regardless of paragraph (2) of the same Article (affirmative), and in such cases, whether the property acquired after the write-off becomes subject to a disposition on default

Article 86 (1) of the National Tax Collection Act provides that a taxpayer may take a disposition of loss in cases where there is a reason falling under any of the subparagraphs of the same paragraph, and Article 86 (2) provides that in cases where the head of a tax office discovers the existence of other property which could have been seized at the time of the disposition after taking a disposition of loss pursuant to the provisions of paragraph (1), he/she shall without delay cancel such disposition and take a disposition of default. Thus, a disposition of loss in accordance with the provisions of paragraph (2) of the same Article may not be cancelled, unless there are special circumstances, even if a new property is found after the disposition of loss, and a disposition of loss in arrears after the cancellation of the disposition of loss in accordance with the above provision can only be taken against the property which could have been seized at the time of the disposition of loss. However, the provision of paragraph (2) of the same Article does not purport to prohibit the revocation of the disposition of loss in error even though there is no reason for revocation, regardless of the provisions of the above paragraph (2) of the same Article, if there is a ground for revocation, the disposition of loss can be cancelled.

Articles 85, 86(1) and (2) of the National Tax Collection Act, Article 83(1) of the Enforcement Decree of the National Tax Collection Act

Supreme Court Decision 85Nu683 Decided March 11, 1986 (Gong1986, 648) Supreme Court Decision 93Nu1308 Decided September 28, 1993 (Gong1993Ha, 305) Supreme Court Decision 94Da8686 Decided June 28, 1994 (Gong194Ha, 2101)

Cooperative taxi Co., Ltd. (Law Firm Sofol, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Head of Nowon Tax Office

Seoul High Court Decision 97Gu30952 delivered on February 11, 1999

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Article 86 (1) of the National Tax Collection Act provides that where a taxpayer has a reason falling under any of the subparagraphs of paragraph (1) of the same Article, the head of a tax office may write off the disposal of deficit, and Article 86 (2) of the same Act provides that where the head of a tax office finds that there had been other assets which could have been seized at the time of the disposal of deficit, he/she shall without delay cancel the disposal of deficit, and where the head of a tax office finds that there had been other assets which could have been seized at the time of the disposal of deficit, the revocation of the disposal of deficit under paragraph (2) of the same Article shall be limited to the case where he/she finds another assets which could have been seized at the time of the disposal of deficit, barring special circumstances, and the disposal of deficit after the revocation of the disposal of deficit under the above provision can not be cancelled, and the disposal of deficit after the cancellation of the disposal of deficit shall be limited to the assets which could have been seized at the time of the disposal of deficit.

In the same purport, the court below held that the defendant's disposition of deficits of the value-added tax and additional dues 423,134,060 won against the plaintiff company on December 31, 1994 was legitimate, since the defendant revoked the above disposition of deficits on September 23, 1996, since it was erroneous that the defendant seizes the property acquired after the disposition of deficits as a disposition of arrears against the above value-added tax and additional dues, and there is no error in the misapprehension of legal principles or incomplete deliberation as alleged in the grounds of appeal. Accordingly, this part of the grounds of appeal is rejected.

2. The court below is justified in holding that the defendant's failure to pay the plaintiff company's delinquent tax was not searched electronically and issued a wrong certificate of completion of tax payment to the representative director of the plaintiff company, but it cannot be deemed that the non-party 1 or non-party 2 who acquired the shares and management rights of the plaintiff company did not believe that the non-party 1 or the non-party 2 did not have any reason to believe that the tax in arrears was not delinquent in the plaintiff company in accordance with the above certificate of completion of tax payment, or that there was no reason to believe it. Thus, the defendant's revocation of disposition of deficit against the plaintiff company's company and seizure of the plaintiff company's property cannot be viewed as violating

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Shin Sung-sung (Presiding Justice)