Revocation of disposition of disposition of disposition

Even though the disposition on deficits was made at the time of the enforcement of the former National Tax Collection Act, the disposition on deficits shall not be revoked and the disposition on deficits shall not be made for arrears by applying the amended new law disadvantageous to

The contents of the decision shall be the same as attached.

Seoul Administrative Court Decision 2001Gu3463 delivered on April 20, 2001

1. The plaintiff's appeal is dismissed.2. The costs of appeal are assessed against the plaintiff.

1. Details of the disposition;

【No. 1, No. 3-2, No. 1, No. 2, No. 3, No. 8, and the whole purport of oral argument】

가. 피고는 소외 주식회사 ㅇㅇ상사(이하 '소외 회사'라 한다)가 1992년도(사업년도 1992. 1. 1.부터 1992. 12. 31.)분 법인세를 신고납부하지 않자, 1993. 6.경 추계조사방식에 의하여 소외 회사의 소득을 231,768,887원으로 결정하는 한편, 이를 소외 회사의 대표이사인 원고의 1992년도 소득에 귀속하는 것으로 인정상여처분하고 1993. 7. 5. 원고에 대하여 위와 같은 내용의 소득금액변동통지를 하였다.

B. Around April 1998, the Defendant adjusted the amount of the global income tax for the year 1992, including the income that was disposed of for the said recognition and contribution, to KRW 122,443,372, and additionally imposed and notified KRW 120,898,920, which is the difference between the amount already paid and the amount already paid by the Plaintiff.

C. On June 26, 1998, the Defendant, who did not pay the above taxes, investigated whether the Plaintiff owned the property to be appropriated for the delinquent national tax, and confirmed that the Plaintiff did not own any property, and issued a write-off disposition on June 26, 1998 as to the Plaintiff’s total amount of KRW 129,898,920 of the above global income tax imposed on the Plaintiff pursuant to Article 86(1) of the former National Tax Collection Act (amended by Act No. 6053 of Dec. 28, 1999), including the amount of KRW 129,845,420 of the above global income tax imposed on the Plaintiff pursuant to Article 86(1) of the former National Tax Collection Act (hereinafter “the instant write-off disposition”).

D. However, on July 1, 1999, the plaintiff defective business registration as a certified tax accountant, and on May 25, 2000, the defendant revoked the above disposition on the ground that the business income was generated to the plaintiff (hereinafter "the disposition of revocation in this case").

2. Related statutes;

(a) Article 26 of the Framework Act on National Taxes;

(1) Prior to the amendment by Act No. 5189 of Dec. 30, 1996

Article 26 (Extinguishment of Liability for Payment) The liability to pay any national tax, additional dues or disposition fee for arrears shall be extinguished when it falls under any of the following subparagraphs:

1. When the payment, appropriation, cancellation of imposition or disposal of deficit is made;

2. When the period in which the national tax may not be assessed under Article 26-2 expires, and the period expires; and

3. When an extinctive prescription of right to the collection of national tax is completed under Article 27.

(2) The amendments thereto

Article 26 (Extinguishment of Liability for Payment) The liability to pay any national tax, additional dues or disposition fee for arrears shall be extinguished when it falls under any of the following subparagraphs:

1. When the impositions are paid, appropriated, or the levy is cancelled;

2. When the period in which the national tax may not be assessed under Article 26-2 expires, and the period expires; and

3. When an extinctive prescription of right to the collection of national tax is completed under Article 27.

(b) Article 86 of the National Tax Collection Act;

(1) Prior to the amendment by Act No. 6053 of Dec. 28, 1999

(1) In case where a cause falling under any of the following subparagraphs exists, the director of the tax office may make disposal of deficit for the taxpayer:

1. Where the disposition for arrears is terminated, and the distributed money is short of paying the delinquent amount;

2. Where it falls under Article 85;

3. When an extinctive prescription of right to the collection of national tax is completed.

4. Where it is deemed that there is no possibility of collection as prescribed by the Presidential Decree.

(2) If the director of the tax office finds, after making the disposition on loss under paragraph (1), that there was other seizable properties at the time of the disposition, he shall cancel without delay the disposition and effect a default disposition.

(2) The amendments thereto

(1) In case where a cause falling under any of the following subparagraphs exists, the director of the tax office may make disposal of deficit for the taxpayer:

1. Where the disposition for arrears is terminated, and the distributed money is short of paying the delinquent amount;

2. Where it falls under Article 85;

3. When an extinctive prescription of right to the collection of national tax is completed.

4. Where it is deemed that there is no possibility of collection as prescribed by the Presidential Decree.

(2) If the director of the tax office finds other seizable properties after making the disposition on loss under paragraph (1), he shall cancel without delay such disposition, and make a disposition on default.

2. The plaintiff's assertion

The disposition of loss in this case was conducted under the National Tax Collection Act before the amendment, and pursuant to Article 86 (2) of the same Act, the property which can be seized at the time of the disposition of loss should be discovered in order to cancel the disposition of loss, and even if new property was acquired after the disposition of loss, it cannot be cancelled on the ground that the disposition of loss in this case was unlawful since the plaintiff's business income accrued after the disposition of loss

In addition, if the defendant retroactively applied Article 86(2) of the revised National Tax Collection Act and then revoked the case, it is unlawful in violation of the principle of non-payment of the tax law.

3. Determination on the lawfulness of the instant lawsuit

According to the evidence Nos. 9 and 10, the defendant can recognize the fact that the plaintiff made a disposition of loss again against the plaintiff on the ground that the plaintiff did not operate his business on December 21, 2000 and did not have any property. Thus, the plaintiff has no legal interest to seek the cancellation of the disposition of this case previously conducted. Thus, the lawsuit of this case is unlawful as there is no interest in the lawsuit without any need for further review.

In regard to this, the plaintiff asserts that, in the event that the cancellation of the disposition of this case is not revoked, the defendant had a legal interest to seek the cancellation of the disposition of this case in order to prevent this, since the plaintiff could cancel the disposition of this case on December 21, 200 and make a disposition of arrears on the ground that the plaintiff acquired the seizable property after the disposition of this case, by applying Article 86 (2) of the

However, Article 26 subparagraph 1 of the Framework Act on National Taxes, which was amended by Act No. 5189 of Dec. 30, 1996, stipulated the disposal of deficit as one of the grounds for extinguishment of tax liability, but the disposal of deficit is excluded from the grounds for extinguishment of tax liability due to the above amendment, and the national tax due to the disposal of deficit is not extinguished due to the disposal of deficit, so the disposal of deficit becomes less than the meaning of the completion of the procedure for the disposal of deficit, and the revocation of the disposal of deficit has only significance as an administrative procedure to resume the procedure for the disposition of arrears, not as an administrative procedure to restore the national tax extinguished due to the disposal of deficit, but as an administrative procedure to resume the procedure for the disposition of arrears completed due to the revocation of the disposal of deficit. As seen above, as long as the procedure for the disposition of arrears is completed by the defendant again, there is no benefit

Therefore, the plaintiff's lawsuit of this case is dismissed as it is unlawful, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.