Attachment after the expiration of the statute of limitations on the right to collect national tax shall be null and void as a matter of course.

The instant attachment disposition is a collection disposition made after the Defendant’s right to collect national taxes terminates due to the expiration of extinctive prescription, and its defect is significant and apparent, and thus constitutes a revocation of extinctive prescription.

2013Guhap2479 Nullification of the imposition of comprehensive real estate holding tax

Ethical Sheet

AA Head of the Tax Office

January 21, 2014

February 18, 2014

1. We affirm that the attachment disposition taken by the Defendant against each claim listed in XX. Attached List 1 on June 2009 is invalid.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant.

Cheong-gu Office

Paragraph 1 and the Defendant confirmed that the disposition of imposition of global income tax of KRW 13, 890 on the Plaintiff in 196 is null and void.

1. Details of the disposition;

The following facts may be recognized by integrating the respective descriptions of evidence Nos. 7, Nos. 1 and 2, and the purport of the whole pleadings.

A. From July 15, 1996, the Defendant reported the global income tax base for the 1996 global income tax for the Plaintiff on December 3, 199, when operating an entertainment tavern (hereinafter “instant entertainment tavern”) under the trade name, “AAAAB BB Dong 73- XX,” and, on December 3, 199, notified the Plaintiff of the decision on the correction of global income tax amounting to KRW 13,890 (hereinafter “instant disposition”).

B. The Defendant seized the Plaintiff’s claim stated in the [Attachment 1] List on June 2009 (hereinafter “instant attachment disposition”) on the ground that the Plaintiff did not pay the global income tax of 13, 1996, 890 won, which was corrected as above.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff did not operate the instant entertainment drinking club business after opening the instant entertainment drinking club business, and only operated by a third party after making a business registration by stealing the Plaintiff’s name. In addition, the instant disposition was not issued. Accordingly, the instant disposition was unlawful, and its defect is grave and obvious.

2) Since the instant disposition is null and void, the instant disposition is also null and void. Even if the instant disposition is lawful, since the extinctive prescription of the right to collect national taxes expires five years after the notice of the instant disposition, the instant disposition is unlawful, and its defect is serious and clear.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) Whether the instant disposition is null and void

A) We examine the Plaintiff’s assertion that the instant entertainment tavern was not operated.

(1) The evidence submitted by the Plaintiff alone is insufficient to recognize that the third party completed business registration by stealing the name of the Plaintiff and operated the entertainment tavern in the instant case, and there is no other evidence to acknowledge it.

Rather, according to the overall purport of evidence Nos. 2, 4, and 5, a business license certificate issued by the AA market includes that the Plaintiff is permitted to operate an entertainment tavern business under the trade name of "CCnononopoly shop" (hereinafter referred to as "the entertainment tavern of this case") from January 24, 1989. The food sanitation business license register was accepted on July 15, 1996 by the adjustment of the business license of the entertainment tavern of this case from the plaintiff to the plaintiff. On January 9, 1997, the above business license certificate was transferred from the plaintiff to the Dano.D., and on September 21, 198, it is reasonable to acknowledge that the Plaintiff voluntarily reported the business closure of June 18, 199, while running a business in the entertainment tavern of this case with the business license of the plaintiff. Accordingly, the Plaintiff's assertion that the above business license of this case was made against D 196 to D 196.

(2) Meanwhile, in order to make a tax disposition as a matter of course null and void, the mere fact that there is an illegality in the disposition should be insufficient to say that the defect is in violation of important laws and regulations and objectively apparent. The defect in the tax disposition imposed on a person who does not have any legal relation or factual basis subject to taxation should be deemed to be significant and apparent. However, in a case where there are objective circumstances that make it possible to believe that a certain legal relation or factual basis which is not subject to taxation is subject to taxation and that it is subject to taxation, if it is possible to accurately investigate the factual basis, it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed to be an unlawful taxation that misleads the fact subject to taxation, even if it is unlawful, it cannot be deemed to be null and void as a matter of course (see, e.g., Supreme Court Decision 2001Du

The issue of who is the actual business owner of the instant entertainment tavern can be revealed only when a specific fact-finding is conducted. Even if there is a defect in the instant disposition by stealing the name of the instant entertainment tavern, such defect cannot be deemed apparent, and thus, it cannot be deemed that the instant disposition is null and void as a matter of course. Therefore, the Plaintiff’s assertion of invalidity as a matter of course is without merit.

B) We examine the allegation that the notice of tax disposition of this case is unlawful.

(1) In full view of the provisions of Articles 8(1), 10(1) and (2), and 12(1) of the former Framework Act on National Taxes (amended by Act No. 6782, Dec. 18, 2002; hereinafter the same), a tax payment notice shall be served either by the address, residence, place of business, or office of the title holder, or by mail; in the case of mail, by registered mail, it shall be served; in the case of mail, by registered mail, and in the case of mail sent by registered mail, by the recipient, by the time of delivery, unless there are special circumstances such as return (see, e.g., Supreme Court Decisions 200Da20052, Oct. 27, 200; 97Nu8977, Feb. 13, 1998).

(2) According to the overall purport of evidence Nos. 8 and 1 and 2 evidence, ① all of the Plaintiff’s address and resident registration number, date of notification ( December 3, 199), and payment deadline ( December 31, 199) prepared by the Defendant’s written resolution for correction of the disposition of this case; ② as a result of examining the details of the disposition of this case by computer, the tax item code of the disposition of this case, the tax payment number, the taxpayer’s name, the payment deadline, the notified tax amount, and the competent government office were electronically designated as the Defendant on January 25, 200, and in principle, it is reasonable to view that the payment deadline was returned to the Plaintiff on August 19, 200; ③ the Plaintiff raised an objection against the Defendant on September 19, 2009, but the Plaintiff did not request the disposition of this case to the effect that the registered mail was delivered to the Defendant on the ground that the registered mail was delivered to the Defendant on the 19th day before the date of delivery.

(3) Therefore, the Plaintiff’s assertion on this part is without merit.

2) Whether the instant attachment disposition is invalid

A) Article 27 of the former Framework Act on National Taxes provides that if the right to collect the national tax is not exercised for five years from the time when it is possible to exercise that right, the extinctive prescription shall expire. Article 12-4(1) of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010) provides that "when the government determines, revises, or determines the tax base and tax amount on an occasional basis, the following day (paragraph 2) shall be applicable to the notified tax amount."

B) The time limit for payment of the instant disposition is December 31, 199 (or January 25, 200), and as seen earlier, it is apparent that five years have passed since the Defendant had already exercised the right to collect the said national tax at the time of the instant attachment disposition. Therefore, in this case where there is no evidence to acknowledge the interruption of the statute of limitations, the instant attachment disposition is a collection disposition that was made after the expiration of the statute of limitations, and its defect is significant and apparent. Thus, the instant attachment disposition is null and void as it is reasonable.

C) Therefore, the Plaintiff’s assertion on this part is with merit.

3. Conclusion

Therefore, the plaintiff's claim against the seizure disposition of this case is justified, and the claim against the disposition of this case is dismissed as it is without merit. It is so decided as per Disposition.