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조세심판원 조세심판 | 1999-04-07 | 국심1998중2945 | 기타
[Case Number]

National High Court 1998J 2945 (O4.08, 199)

[Items]

Other

[Types of Decision]

Revocation

[Summary of Decision]

It is unreasonable that the disposition agency regards the enterprise as the concealed property at the time of write-off without presenting objective evidence, so it is improper that the disposition agency cancels the initial write-off and seizes the refundable amount after write-off.

[Related Acts]

Article 86 of the National Tax Collection Act;

【Reference Decision】

National High Court 1990Du2326

【Disposition】

The attachment of bonds (10,431,710 won to be refunded by the head of the tax office of the orchard) shall be revoked by the head of the Dongdaemun District Tax Office on August 7, 1998.

【Reasoning】

1. Summary of disposition;

A. The disposition agency made a disposition of total loss on the ground that the claimant's property cannot be found in the amount of delinquent tax amount of KRW 9,605,330 (hereinafter referred to as "amount of delinquent tax"), such as the transfer income tax reverted to year 1989, on the ground that the claimant's property cannot be found.

After that, the head of the Suwon District Tax Office, which has jurisdiction over the controversial company, shall refund 10,431,710 won of the value-added tax amount for the first taxable period of 1998 (hereinafter referred to as "value-added tax amount for the first taxable period of 1998) to the key company in the name of the claimant, and the disposition agency revoked the disposition of deficit on the transfer income tax for the portion for which 1989 was reverted to the claimant's prior notice on August 7, 1998, and at the same time, issued a seizure disposition on the amount of refund tax for the issue refund tax.

B. The claimant appealed and filed an appeal on Nov. 24, 1998 after the request for review on August 26, 1998.

2. Opinions of the applicant and the Commissioner of the National Tax Service;

(a) Request;

(1) Article 26(1)1 of the Framework Act on National Taxes (amended by Act No. 5189, Dec. 30, 1996) provides for the disposal of deficit as the grounds for extinguishment of liability for tax payment, and Article 86(2) of the National Tax Collection Act provides only "when a person finds, after the disposal of deficit, that there had been other seizable assets at the time of such disposal, after the disposal of deficit."

The key issue refund tax amount is the refund tax amount at the first taxable period portion of the year 198 (from April 1, 1998 to 6.30), not the property concealed at the time of the disposition of deficits for the amount of outstanding tax in arrears (Article 1994.12.31). Since the disposition agency finds that there was other property to be seized at the time of the disposition of deficits, it does not constitute a ground for cancellation of the initial disposition of deficits (the National Tax Service's requisition), it is improper to seize the key refund tax amount after the disposition agency cancels the initial disposition of deficits.

(2) Although the claimant has lent the name as the representative of the main company that is engaged in the manufacturing and export business by simply requesting the OOO outside of the claim for family offering to the effect that there are external circumstances, the applicant is not in a relationship with the management in fact. This fact is unjust since the public notice summonsing the above OOO as the overdue wage at the Suwon Regional Labor Office and the real business operator is confirmed by the confirmation of the business customer of the main company that is the issue that the applicant is an OO outside of the claim, but the representative under the business registration certificate is registered in the name of the applicant, and the attachment of the key refund amount is in violation of the principle of

(b) Opinions of the Commissioner of the National Tax Service;

(1) According to the provisions of Article 86(2) of the National Tax Collection Act and Article 120 of the Regulations on the Management of National Tax Collection, where a new business operator confirms that a concealed property has been found according to an investigation at the time of business registration, according to the content that a new business operator immediately takes measures to collect, such as seizure, etc., when examining the business registration application filed by the main company of the instant claimant at the time of the commencement of business, it is evident that there was a concealed property, such as a new business fund (business transfer price) 11

(2) The claimant prepared a certificate on the contract that he/she intends to transfer or take over the business directly from the off-claimO for the commencement of the business, and issued a business registration certificate by confirming and investigating the claimant from the Suwon Tax Department, which is the district tax office having jurisdiction over the disputed enterprise, as the actual business operator. Since the claimant presents data on financial transactions that can objectively prove the fact that the income generated from the disputed enterprise actually reverts to the OO other than the claim, the disposition that the disposition agency seizes the amount of refund by deeming the claimant as the actual business

3. Hearing and determination

A. Key issue

(1) The legitimacy of the assertion that the disposition to seize the key refund tax amount is improper, since the key refund tax amount is not the concealed property at the time of a write-off on the key issue tax amount in arrears.

(2) The legitimacy of the allegation that the attachment disposition of the outstanding refund tax amount is improper merely because the claimant is the representative of the key company’s name.

B. We examine the issues (1).

(1) Relevant statutes

In case where there exist the causes falling under any of the following subparagraphs in Article 86 (1) (main sentence) and 4 of the National Tax Collection Act (amended by Act No. 5189, Dec. 30, 1996), the director of the tax office may write off the losses of the taxpayer:

4. Where it is deemed that there is no possibility to collect tax pursuant to the provisions of the Presidential Decree, and the same shall apply.

When the director of the tax office finds, after taking the disposition of deficit pursuant to the provisions of paragraph (1), that there was other seizable assets at the time of the disposition, he shall cancel the disposition without delay and effect the disposition for arrears.

The disposal of deficit under Article 86 (1) 4 of the Enforcement Decree of the same Act in the main sentence of Article 83 (1) and subparagraph 1 of the same Article shall be limited to cases falling under any of the following subparagraphs:

1. Where the whereabouts of a delinquent is unknown or it is confirmed that a delinquent does not own property, and where the director of the tax office intends to write off a deficit pursuant to the provisions of paragraph (1) 1 of the same Article, he shall investigate and confirm the whereabouts of a local administrative agency or financial institution: Provided, That this shall not apply where the delinquent national tax is less than 100,000 won;

(2) Facts and determination

(A) The disposition agency revoked the disposition of deficits on the issue of delinquent tax amount, and the claimant is presumed to have opened the key company with the concealed property at the time of the disposition of deficits, and it does not present specific evidence as to what was the concealed property.

(B) Article 86(2) of the National Tax Collection Act provides that if a person finds that there was another seizable property at the time of a disposition of loss, the disposal of the other seizable property is revoked. Here, the other seizable property refers to the concealed property that was not discovered at the time of the disposition of loss, and it is evident that the property newly acquired by the delinquent taxpayer after the disposition of loss is not subject to seizure (see Supreme Court Decision 85Nu683, Mar. 11, 1986).

It is difficult to recognize that the claimant without any special occupation is operating by taking over the key company with money after the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the disposal of the concealed property

In light of the provisions of the above-mentioned related Acts and subordinate statutes or the Supreme Court precedents, etc., if any property acquired after a write-off is discovered, in order to regard such property as a concealed property at the time of write-off, it is judged that the disposition agency should actively prove that it acquired such property as at the time of write-off (the same meaning as the majority other than the national trial 90Do2326, Feb. 1, 191);

In the case of this recommendation, it is unfair that the disposition agency has taken over the business as the concealed property at the time of write-off without presenting objective evidence, and the disposition to seize the issues refund amount that occurred after the disposition of write-off is deemed unfair.

C. We examine the issues (2).

This part is omitted as it has no practical benefit in the hearing.

D. Conclusion

Therefore, this case's petition is reasonable, so it is decided in accordance with Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes.