Suwon District Court-2016-Gu Group-8184 (2017.03.08)

Whether there is any defect in an invalidation of a disposition after the extinctive prescription is completed.

Since the Plaintiff’s obligation to pay capital gains tax was not determined as invalid due to its original disposition, the extinctive prescription of the right to collect State tax does not run, and the instant disposition is lawful.

Article 27 of the Framework Act on National Taxes

2017Nu41308 Revocation of Disposition of Imposing capital gains tax

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〇〇세무서장

Suwon District Court Decision 2016Gudan8184 Decided March 8, 2017

July 19, 2017

August 30, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s imposition of capital gains tax of KRW 49,628,170 (including additional tax) accrued to the Plaintiff on November 2, 2015 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of judgment of the first instance;

This Court's reasoning is as follows: "1. Reasons for the disposition of this case", "2. Whether the disposition of this case is legitimate", and "the pertinent laws and regulations" are as stated in the corresponding part of the judgment of the court of first instance (2. 2. 2. 3. 3. 15). Thus, they are cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Determination

(a) Whether the Plaintiff’s tax liability has been determined by the original disposition;

According to the purport of Gap evidence Nos. 3, 5, and 2 and the whole pleadings, the plaintiff shall raise an objection.

사건 부동산을 양도한 후인 2008. 10. 21. 원고의 소재지를 이 사건 부동산 소재지에서'〇〇시 〇〇구 〇〇동 000-0 0층'으로 변경하고 이를 피고에게 신고한 다음 사업장 이전으로 인한 원고 소재지 변경을 사유로 하여 고유번호증을 교부받은 사실, 그 후 피고는 원처분에 따른 납세고지서를 원고의 종전 주소로 송달하였으나 송달이 되지 아니하자 2010. 2. 8. 공시송달의 방법에 의하여 송달한 사실을 인정할 수 있고, 피고가 2015. 7. 27. 납세고지서가 적법하게 송달되지 아니하였음을 이유로 원처분을 취소한 사실은 앞서 본 바와 같다.

Article 11(1)2 of the Framework Act on National Taxes and Article 7 of the Enforcement Decree of the same Act include cases where the address or place of business is not clear" means the case where a resident registration card, corporate registry, etc. can not be confirmed even if the defendant had verified the plaintiff's identification number certificate. As such, the service of a tax payment notice on the original disposition could have been confirmed if the defendant had verified the plaintiff's identification number certificate, and the service of a tax payment notice on the original disposition does not take effect as an unlawful service by public notice. As long as the service of a tax payment notice on the tax disposition is illegal in violation of the provisions of the Framework Act on National Taxes and its validity does not take effect, the original disposition is invalid (see Supreme Court Decision 95Nu3909, Aug. 22, 1995). Furthermore, pursuant to Article 22(1) of the Framework Act on National Taxes and Article 10-2 subparag. 2 of the Enforcement Decree of the same Act, the plaintiff's tax payment

B. Whether the right to collect the national tax expires by prescription

Article 27(1) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the same) provides that "the extinctive prescription of the State shall expire if it is not exercised for five years from the time it can be exercised." Article 27(3) of the same Act provides that "the time it is possible to exercise the State's right to collect national taxes under the provisions of paragraph (1) shall be determined by Presidential Decree." Article 12-4(1) of the Enforcement Decree of the Framework Act on National Taxes provides that "the time it is possible to exercise the State's right to collect national taxes" in Article 27(3) of the same Act provides that "the date falling under any of the following subparagraphs shall be the day after the statutory due date for payment of the national taxes is declared, "the day following the due date for payment of the tax base and amount of tax notified where the Government determines, revises or determines the amount of tax to be imposed," and "the day following the due date for payment notice shall not be exercised any right within 9 years.

On the other hand, the mere fact that the requirements for taxation are satisfied is merely an abstract establishment of the duty to pay taxes, and thus, the State shall confirm the details of the tax obligation in order to proceed to the collection procedure. As long as the tax claim has not been finalized, the right to collect the national tax, which is a procedural right for the final tax obligation, cannot be exercised. Therefore, the circumstance that the duty to pay taxes has not been finalized, shall be deemed as a ground for disability

As seen earlier, even if the Defendant determined and notified the original disposition on December 1, 2009, it cannot be deemed that the point at which the original disposition was invalidated, and thus, the Plaintiff’s liability to pay taxes was not determined. Therefore, the time of the determination and notification of the original disposition cannot be deemed as “when the State can exercise its right to collect national taxes” under Article 27(1) of the former Framework Act on National Taxes, and thus, extinctive prescription of the right to collect national taxes does not proceed (Supreme Court Decision 85Nu688 Decided February 23, 1998 invoked by the Plaintiff).

C. Whether the instant disposition is lawful

According to Article 26-2 (1) 2 of the Framework Act on National Taxes, “where a taxpayer fails to file a tax base return by the statutory due date of return,” national taxes may be imposed for seven years from the date on which the relevant national tax can be imposed, and the Plaintiff’s failure to file a tax base return of capital gains tax is identical as seen earlier. Thus, the instant disposition taken on June 1, 2009, which was within seven years from June 1, 2009, the day following the due date of the final return of capital gains tax, was conducted within the exclusion period, and is lawful (On the other hand, penalty tax under tax law is an administrative sanction imposed on the taxpayer as prescribed by the Act in order to facilitate the exercise of the right to impose tax and the realization of tax claims, and it is difficult to view the Plaintiff’s failure to file the original disposition as the grounds attributable to the Plaintiff’s failure to file the final return on the grounds that the Plaintiff failed to file the final return on the grounds that it was not attributable to the Plaintiff’s failure to perform its duty (see, e.g.

3. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit. The court of first instance that concluded otherwise.

Since the judgment is unfair, the plaintiff's claim is dismissed.