[1] Whether the tax authority may cancel the taxation disposition on the grounds of the procedural defect in the taxation disposition procedure, and supplement the defect and make the same taxation disposition (affirmative)

[2] In a case where a tax law was amended and a separate transitional provision is not provided in the Addenda, the time when the tax law and the secondary tax liability is established

[1] Article 1 of the Administrative Litigation Act / [2] Article 39 (1) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998), Article 39 (1) of the Framework Act on National Taxes

[1] Supreme Court Decision 84Nu406 delivered on October 23, 1984 (Gong1984, 1864), Supreme Court Decision 85Nu910 delivered on October 14, 1986 (Gong1986, 3051) / [2] Supreme Court Decision 2003Du13083 Delivered on April 15, 2005 (Gong2005Sang, 760)

Plaintiff

The director of the Southern Incheon District Office

Seoul High Court Decision 2003Nu5046 delivered on January 15, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal (if the supplemental appellate brief was not timely filed, to the extent of supplement) are examined as follows.

1. Regarding ground of appeal No. 1

In a case where a tax authority finds a defect in the procedure of the notice of payment of the tax disposition while the litigation on the tax disposition is underway, the said tax disposition may be revoked and the same taxation disposition may be made again by supplementing the procedural defect, and such new disposition does not conflict with the power of the administrative action and the power of the non-defluence (see Supreme Court Decision 84Nu406 delivered on October 23, 1984, Supreme Court Decision 85Nu910 delivered on October 14, 1986, and Supreme Court Decision 85Nu910 delivered on October 14, 1986), and it cannot be deemed that the instant disposition, which was made by supplementing the procedural defect after revocation of the initial tax disposition, constitutes an unlawful disposition, such as double imposition, as asserted by the Plaintiff (appointed party and hereinafter referred to as the “Plaintiff”). Accordingly, the ground of appeal on this part

2. Regarding ground of appeal No. 2

A. According to the reasoning of the judgment below, the court below found that the plaintiff 7,00 shares issued by the non-party 1 corporation as of December 31, 1997 and June 30, 198, the non-party 1 corporation as of June 30, 199, and the non-party 1 corporation as of the non-party 1 corporation (hereinafter "non-party 1 corporation"), and 6,000 shares (30%) as his wife's wife, and 27,00 shares (35%) were owned respectively on the register of the non-party 1, and it is hard to find that the non-party 1 corporation was registered on the register of the non-party 1 as the representative director and the non-party 1 was transferred to the non-party 9, and there is no violation of the rules of evidence as to the non-party 1's transfer of the shares to the non-party 1 corporation as of June 19, 196.

B. Meanwhile, the lower court determined that the Plaintiff, etc. is an oligopolistic shareholder who actually exercises the right to 51/100 or more of the total amount of shares generated in the non-party company’s company, by applying Article 39(1)2(a) of the former Framework Act on National Taxes (amended by Act No. 5579, Dec. 28, 1998; hereinafter “former Framework Act on National Taxes”) to the non-party company’s secondary tax liability for the total amount of the value-added tax in the instant case.

However, the statute that takes effect at the time of the establishment of tax liability should be applied to the case where there is no special transitional provision regarding the amendment clause in the Addenda. Meanwhile, in order to establish the secondary tax liability, the fact that the principal taxpayer's default and other requirements are met. Thus, the time of establishment shall be at least after the expiration of the payment period (see Supreme Court Decision 2003Du13083, Apr. 15, 2005). According to such legal principles and factual relations and records established by the court below, the second tax liability of the plaintiff et al. of this case is against the second tax of February 1997 and the first tax of January 1998, and its establishment date is at least after the non-party company's default and the second tax liability of the non-party company was established after the second tax payment period of the non-party company, which is the main taxpayer, was at least after the expiration of the payment period of the tax liability of the non-party company, and the amendment of the Act No. 1995, Jul. 15, 19999.

Thus, although the second tax liability of the plaintiff et al. of this case is limited to the amount according to the share ratio of the plaintiff et al. under Article 39 (1) 2 (a) of the revised Framework Act on National Taxes, the court below held that the plaintiff et al. is liable for the second tax liability with respect to the whole amount of the non-party company's arrears under the premise that the Framework Act on National Taxes prior to the amendment applies to the whole amount of the non-party company.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon (Presiding Justice)