[1] The amendment of Article 26 subparag. 1 of the Framework Act on National Taxes by Act No. 5189 of Dec. 30, 1996, excluded the “disposition” from the grounds for extinguishment of tax liability, and the amendment of Article 86(1) of the National Tax Collection Act by Act No. 6053 of Dec. 28, 1999, expanded the grounds for revocation of the disposition of loss to the “when another property that can be seized is discovered” in accordance with the purport of the above amendment of the Framework Act on National Taxes, and whether the “disposition of loss” or “cancellation of the disposition of loss” is an administrative disposition against which an appeal litigation is filed

[2] The reason why the National Tax Collection Act provides a notice of public auction when selling the attached property, and whether the notice of public auction itself constitutes an administrative disposition subject to appeal (negative in principle)

[1] Although the "Disposition on Deficits", which was stipulated as one of the grounds for extinguishment of tax liability under Article 26 subparagraph 1 of the former Framework Act on National Taxes prior to the amendment by Act No. 5189 of December 30, 1996, was excluded from the grounds for extinguishment of tax liability under the revised Framework Act on National Taxes, it has been retained as it is under Article 86 (2) of the former National Tax Collection Act (amended by Act No. 6053 of December 28, 1999), which provides that "when a taxpayer discovers the existence of any other seizable property at the time of the disposition on deficits," the disposition on deficits should be revoked without delay and the disposition on deficits should be revoked, and it has the meaning that the grounds for revocation of the disposition on deficits (hereinafter "amended National Tax Collection Act") has been expanded to "when another property that can be seized is discovered" in accordance with the purport of the amendment of the Framework Act on National Taxes. The following amendment of the National Tax Collection Act merely has the meaning that the disposition on deficits was terminated.

[2] The reason why the National Tax Collection Act requires the delinquent taxpayer, etc. to notify the public sale of the attached property separate from the public sale is that the delinquent taxpayer, etc. has the opportunity to verify whether the public sale procedure is lawfully conducted based on the effective tax imposition disposition and the seizure disposition. On the other hand, the delinquent taxpayer, etc. shall be given an opportunity to preserve ownership or other rights by paying delinquent tax and suspending or cancelling the public sale procedure as prescribed by the National Tax Collection Act, thereby securing procedural legitimacy to cope with the forced loss of property rights that the delinquent taxpayer, etc. should bear. Therefore, the notice of the public sale to the delinquent taxpayer, etc. is a procedural requirement to protect the delinquent taxpayer's rights or property interests in the public sale conducted by the state's compulsory power. If the notice of the public sale was not issued while the notice of the public sale was not legitimate, the public sale disposition becomes unlawful due to procedural defects, but it does not directly affect the other delinquent taxpayer, etc.'s legal status, rights and obligations, and thus, it does not constitute revocation of the public sale notice itself.

[1] Article 26 subparagraph 1 of the former Framework Act on National Taxes (Amended by Act No. 5189, Dec. 30, 1996); Article 26 subparagraph 1 of the former Framework Act on National Taxes (Amended by Act No. 9911, Jan. 1, 2010); Article 86 (2) of the former National Tax Collection Act (Amended by Act No. 6053, Dec. 28, 1999); Article 86 (2) of the former National Tax Collection Act (Amended by Act No. 9265, Dec. 26, 2008); Article 86 (2) of the former National Tax Collection Act / [2] Articles 66, 67 (2) and 68 of the former National Tax Collection Act (Amended by Act No. 8055, Oct. 27, 2006); Articles 2 and 4 of the Administrative Litigation Act

[1] Supreme Court Decision 2001Du10066 Decided September 24, 2002 (Gong2002Ha, 2611), Supreme Court Decision 2003Du12363 Decided February 17, 2005 (Gong2005Sang, 429) / [2] Supreme Court Decision 2006Du8464 Decided July 27, 2007 (Gong2007Ha, 1393), Supreme Court en banc Decision 2007Du18154 Decided November 20, 2008 (Gong208Ha, 1799)

Plaintiff (Law Firm Chungcheong, Attorneys Kim Jung-jin et al., Counsel for the plaintiff-appellant)

The Director of Gangnam District Office

Seoul High Court Decision 2009Nu12268 decided October 13, 2010

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

1. Plaintiff’s ground of appeal

A. On the first ground for appeal

Article 86 (2) of the former National Tax Collection Act, which provides that "a disposition on deficits," which was stipulated as one of the grounds for extinguishment of tax liability under Article 26 subparagraph 1 of the former Framework Act on National Taxes (amended by Act No. 5189 of Dec. 30, 1996, shall be revoked without delay and the disposition on deficits shall be revoked, although the amended Act excluded from the grounds for extinguishment of tax liability, it has been expanded to "when another property that can be seized at the time of the disposition on deficits, is discovered" as it is, where the National Tax Collection Act was amended by Act No. 6053 of Dec. 28, 1999, to "when another property that can be seized is discovered" in accordance with the purport of the Framework Act on National Taxes (amended by Act No. 5189 of Dec. 30, 200; see, e.g., Supreme Court Decision 200Du366365, Feb. 36, 2006).

Based on the facts stated in its reasoning, the court below determined that the disposition of disposal on December 24, 2002 and the disposition of disposal on August 26, 2003, among the disposition of disposal on transfer income tax of this case rendered by the defendant as to the transfer income tax of this case No. 1, as stated in its holding, are the disposition of disposal on August 26, 2003, which was made after both the Framework Act on National Taxes and the National Tax Collection Act amended, and thus, the disposition of revocation on each disposition of disposal is merely an administrative procedure for the disposition of disposal on public auction, and thus, it is just in accordance with the legal principles

B. On the second ground for appeal

The reason why the National Tax Collection Act requires the delinquent taxpayer to notify the public sale of the attached property separate from the public sale is that it is an opportunity to verify whether the public sale procedure is lawfully conducted on the basis of the tax imposition disposition and the seizure disposition valid, and that is, it is reasonable to deem that the delinquent taxpayer has an opportunity to preserve ownership or other rights by paying the delinquent tax pursuant to the National Tax Collection Act and suspending or cancelling the public sale procedure as prescribed by the National Tax Collection Act, so as to ensure procedural legitimacy corresponding to the forced loss of property rights that the delinquent taxpayer is obliged to assume. Therefore, the notice of the public sale to the delinquent taxpayer, etc. is a procedural requirement prescribed by Acts to protect the delinquent taxpayer's rights or property interests in the public sale conducted by the State's forced power. Even if the notice of the public sale is not legitimate, if it is defective in the procedure, the public sale disposition becomes unlawful (see Supreme Court en banc Decision 2007Du18154, Nov. 20, 2008).

In the same purport, the court below is just to determine that the claim for confirmation of invalidity of the notice of public auction in this case is unlawful, and there is no error of law by misapprehending the legal principles as to the eligibility for appeal of the notice of public auction.

2. As to the Defendant’s ground of appeal

A. On the first ground for appeal

The cancellation of a disposition on deficits is an administrative disposition that enables the recovery of a tax liability once extinguished due to a disposition on deficits and a new disposition on default, and does not have any provision for the notification procedure of cancellation of the disposition on deficits in law. However, in order to ensure the clarity of tax administration, legal stability and predictability of the taxpayer in light of the principle of no taxation without representation, the cancellation of the disposition becomes effective by notifying the taxpayer in writing at least in a specific manner in accordance with the tax payment notice procedure, or the procedure of cancellation of deferment of collection, and the burden of proving that the disposition on deficits takes effect as a legitimate disposition on the tax authority (see Supreme Court Decisions 200Du5333, Jul. 13, 2001; 2003Du12363, Feb. 17, 2005, etc.).

The court below acknowledged the following facts as stated in its reasoning: (a) the disposal of deficits as of December 31, 1996 and the disposal of deficits as of December 11, 1997 did not notify the plaintiff; and (b) the defendant did not state that the defendant sent the plaintiff on January 26, 2010 included the revocation disposition as to the disposal of deficits as of January 26, 2010; (c) the defendant did not notify the plaintiff in writing that the disposal of deficits in this case was subject to the above disposal of deficits; (d) even until May 11, 2010, the defendant did not notify the plaintiff in writing that the disposal of deficits in this case was subject to the above disposal of deficits; and (e) the above notification did not expressly state the time and amount of the cancellation disposition of each of the above disposal of deficits in detail; and (e) the defendant's argument that the above disposal of deficits in each of the above disposal of deficits was unlawful because it did not specifically notify the plaintiff of the reasons and scope of the cancellation; and (e) rejected for

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the legal principles as to the recovery of defects in the notification of cancellation of loss disposal, and the records, the above judgment of the court below is just and acceptable, and there is no error of law by failing to exhaust all necessary deliberations or by misapprehending the legal principles as to the indication of the grounds and scope of cancellation in the disposition of loss disposal and the recovery of defects in

B. On the second ground for appeal

With respect to the disposal of deficits as of December 31, 1996 and the disposal of deficits as of December 11, 1997, to which the National Tax Collection Act prior to the amendment by Act No. 6053 of Dec. 28, 1999 applies, the court below determined that each of the above disposal of deficits was unlawful on the ground that it does not meet the requirements of Article 86 (2) of the National Tax Collection Act prior to the amendment, since the registration of seizure was completed on October 15, 1996 and the registration of seizure was not cancelled even at the time of the above disposal of deficits, since each of the above disposal of deficits was merely an attached property at the time of the above disposal of deficits, and it is difficult to view that each of the above disposal of deficits was illegal on the ground that it does not meet the requirements of Article 86 (2) of the National Tax Collection Act prior to the amendment.

This part of the judgment of the court below is merely a family and additional judgment, so long as the judgment of the court below that the disposition of revocation on each of the above disposals is unlawful as seen earlier is just, the propriety of the above disposals cannot affect the conclusion of the judgment. In addition, even in light of the relevant provisions of the National Tax Collection Act before the amendment and the legal principles on the cancellation of disposals, and the records, the above judgment of the court below is justified, and there is no error of law that affected the conclusion of the judgment by misunderstanding the legal principles on the requirements for revocation of disposals as alleged in the

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)