The attachment disposition prior to the decision of unconstitutionality is effective because it was made as a follow-up disposition of the imposition disposition.

Since the disposition of this case continues to exist within the scope of reduced amount by correction of reduction, it does not affect the retroactive effect of the decision of unconstitutionality. Therefore, since the attachment disposition also takes place before the decision of unconstitutionality, the attachment disposition of this case also takes effect as a follow-up disposition of the disposition of imposition before the decision of unconstitutionality

2013Guhap1379 Invalidity of a seizure disposition

IsaA

The director of Gwangju Tax Office

October 17, 2013

October 24, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On March 24, 2006, the Defendant confirmed that the attachment disposition against the Plaintiff’s share in each real estate listed in the separate sheet against the Plaintiff is null and void.

1. Details of the disposition;

A. The plaintiff and the plaintiff's wife OB (hereinafter collectively referred to as "the plaintiff et al.") are leasing real estate in attached Table 2 (hereinafter referred to as "the building in this case") owned by the plaintiff et al. under the trade name "CC unemployment."

B. The Plaintiff et al. reported the value-added tax base on the leased revenues of the instant building from January 2001 to February 2005. Accordingly, the Plaintiff et al. reported and paid the global income tax on the leased revenues of the instant building from January 2001 to February 2005.

C. On March 2006, the Defendant: (a) conducted a tax evasion report with the Board of Audit and Inspection to conduct a tax investigation on the Plaintiff et al.; and (b) conducted an investigation on the actual rental deposit and monthly rent of the seven companies leasing the instant building; and (c) deemed that the Plaintiff et al. reported the reduction of the rent revenue OO for six years from 200 to 2006; and (d) notified the Plaintiff et al. to pay an additional amount equivalent to the difference between the previously paid tax amount and the global tax amount after calculating the corrected global income tax and value-added tax (hereinafter “instant disposition”).

D. On March 24, 2006, the Defendant issued a seizure disposition for the Plaintiff’s shares among each real estate listed in the separate sheet (hereinafter “each real estate of this case”) with the claim amount of OOO or value-added tax OO or OOO or more on March 24, 2006.

E. Meanwhile, pursuant to Article 43(3) of the former Income Tax Act (amended by Act No. 5191 of Dec. 30, 1996, and by Act No. 7319 of Dec. 31, 2004), the Defendant calculated global income tax on the Plaintiff by adding up the real estate lease income of the B, and on May 29, 2008, the Constitutional Court’s decision on May 29, 2008 as to the above provision (hereinafter “decision on unconstitutionality of this case”), and reduced the amount of tax to be additionally paid by the Plaintiff in accordance with the purport of the decision on unconstitutionality of this case.

F. On July 3, 2006 and September 27 of the same year, the Plaintiff et al. filed a request for review to the Board of Audit and Inspection on the instant disposition, but was dismissed on September 20, 2007.

G. On October 31, 2007, the Plaintiff et al. filed a lawsuit seeking the revocation of the disposition imposing value-added tax and the disposition imposing global income tax that was revised as above. However, the Gwangju District Court dismissed the Plaintiff et al.’s claim on January 8, 2009, and the above judgment was all dismissed and finalized (Supreme Court Decision 2009Nu385) and the appeal by the Plaintiff et al. (Supreme Court Decision 2009Du18172).

[Reasons for Recognition] Gap evidence Nos. 1, 2, Eul evidence Nos. 1 and 4, the purport of the whole pleadings

2. Whether the seizure disposition of this case is legitimate

A. The plaintiff's assertion

In accordance with the decision of unconstitutionality of this case, the underlying provision of the disposition of this case became null and void, and the defendant, in accordance with the purport of the decision of unconstitutionality of this case, ordered reduction and correction of the disposition of this case. Thus, the disposition of this case was null and void, and the seizure disposition of this case based on the disposition of this case also becomes null and void on the ground that the defect is serious and two.

B. Determination

1) If the Constitutional Court, after the issuance of an administrative disposition based on the law, decided that the law, which served as the basis of the administrative disposition, was unconstitutional, the above administrative disposition becomes identical to that that of the law, and thus, it should be apparent. However, in order for the defective administrative disposition to be null and void as a matter of course, its defect is serious, and it cannot be objectively obvious before the Constitutional Court's decision on unconstitutionality is rendered. Thus, the reason that the law, which served as the basis of the administrative disposition before the Constitutional Court's decision on unconstitutionality, is in violation of the Constitution, can only be the premise of a lawsuit seeking cancellation of the administrative disposition, unless there are special circumstances. If an administrative disposition based on the unconstitutional law is generally null and void as a matter of course, this would result in a serious threat to legal stability, and thus, it cannot be deemed unreasonable even if it is deemed that the unconstitutionality of the unconstitutional law becomes 9-year judgment on the ground that the above administrative disposition is unconstitutional, and thus, it cannot be deemed that there is no special ground for revocation of the 9-year decision on the unconstitutionality of an administrative disposition.

2) Where a tax authority issued a tax disposition to reduce a tax base and amount of tax subsequent to a tax disposition, the tax disposition to reduce the amount of tax shall continue to exist within the scope of the reduction of tax base and amount of tax (see Supreme Court Decision 85Nu599, Dec. 22, 1987).

3) On the other hand, the instant disposition continues to exist within the scope of reduction by correction, and since the final decision of dismissal was made by the final decision of dismissal in the revocation lawsuit against the instant disposition prior to the instant decision of unconstitutionality, the instant disposition does not affect the retroactive effect of the instant disposition of unconstitutionality. Therefore, the instant disposition of unconstitutionality is still valid, and the instant disposition of unconstitutionality was made as a follow-up disposition of the instant disposition of unconstitutionality prior to the foregoing decision of unconstitutionality. Therefore, the instant disposition of unconstitutionality is also effective. Accordingly, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.