2020.06.26

2019 (Gyo-Hi) 252

Minshu Vol. 74, No. 4

Judgment concerning a notice to an heir to request the payment, etc. of money to be collected by a local body for which a notification of payment has already been given to the decedent while specifying the due date for the payment and the renewal of extinctive prescription

Case seeking the revocation of a disposition concerning national health insurance tax

Judgment of the Second Petty Bench, partially quashed and decided by the Supreme Court and partially dismissed with prejudice on the merits

Tokyo High Court, Judgment of March 27, 2019

A notice to an heir to request the payment, etc. of money to be collected by a local body for which a notification of payment has already been given to the decedent while specifying the due date for the payment does not have the effect of renewing extinctive prescription under Article 18-2, paragraph (1), item (i) of the Local Tax Act (prior to amendment by Act No. 45 of 2017) with regard to the right to collect local tax pertaining thereto.

Article 9 and Article 13, paragraph (1) of the Local Tax Act and Article 18-2, paragraph (1), item (i) of the Local Tax Act (prior to amendment by Act No. 45 of 2017)



Local Tax Act

(Succession of Obligation to Pay Tax by Inheritance)

Article 9

(1) If there is a succession (including a universal legacy; hereinafter the same applies in this Chapter), an heir (including a universal legatee; hereinafter the same applies in this Chapter) or a corporation referred to in Article 951 of the Civil Code (Act No. 89 of 1896) must pay money to be collected by a local body that should be imposed on the decedent (including a comprehensive legator; hereinafter the same applies in this Chapter) or that the decedent should pay (hereinafter such money is to be referred to as "money to be collected from the decedent by the local body" in this Chapter); provided, however, that for an heir who has made qualified acceptance, such payment is to be within the extent of the property obtained by inheritance.

(2) In the case referred to in the preceding paragraph, if there are two or more heirs, each heir must pay the amount calculated by dividing the amount of money to be collected from the decedent by the local body in proportion to the share in inheritance of each heir under the provisions of Articles 900 to 902 of the Civil Code.

(3) In the case referred to in the preceding paragraph, if the value of property obtained by any of the heirs by inheritance exceeds the amount of money to be collected by the local body that the heir should pay pursuant to the provisions of the same paragraph, the relevant heir is to be liable to pay the money to be collected by the local body that the other heirs should pay pursuant to the provisions of the preceding paragraph within the extent of the exceeding value.

(4) The obligations succeeded pursuant to the provisions of the preceding three paragraphs are to include the obligation to make a report pertaining to the obligations.

(Notification of Payment)

Article 13, paragraph (1)

(1) When the head of a local body intends to collect money to be collected by the local body (excluding expenses for the delinquent tax collection procedure) from a taxpayer or a person in charge of special collection, the head must give such person a notification of payment in writing. In this case, the amount to be paid, the due date for the payment, and the place of the payment, and other necessary matters are to be stated in the relevant document, except as otherwise provided by this Act.

Local Tax Act (prior to amendment by Act No. 45 of 2017)

(Renewal and Suspension of Prescription)

Article 18-2, paragraph (1), item (i)

(1) With regard to money to be collected by a local body for the part pertaining to a disposition set forth in the following items, prescription of the right to collect local tax is to be renewed when the disposition becomes effective and is to start a further run when the period provided in the following items passes:

(i) a notification concerning payment: the period up to the due date for payment designated in the notification

1. Of the judgment in prior instance, the part concerning a claim for the revocation of a disposition of distribution and a claim for the payment of money is quashed.

2. The appeal to the court of second instance filed by the appellee of final appeal is dismissed with prejudice on the merits.

3. The appellee pays 585,600 yen to the appellant of final appeal.

4. Other final appeals filed by the appellant are dismissed with prejudice on the merits.

5. The court costs in prior instance and this instance are divided into three parts, of which, one shall be borne by the appellant and the rest shall be borne by the appellee.

Concerning the reasons for a petition for acceptance of final appeal stated by the appellant (except for the reasons excluded)

1. The Kazo City Mayor attached the appellant's right to claim the refund of a deposit (hereinafter this attachment is to be referred to as the "Disposition of Attachment") as a disposition of delinquency for national health insurance tax and delinquent charges therefor and distributed the collected money to the claims pertaining to the aforementioned national health insurance tax, etc. (hereinafter referred to as the "Disposition of Distribution"). The appellant argues that the aforementioned claims have been extinguished by prescription, and demands that the appellee revokes part of the Disposition of Distribution (part exceeding the amount for which the appellant recognizes the obligation to pay as delinquent charges), etc. and pays money in the amount equivalent to this part.

2. The outline of facts lawfully determined by the court of prior instance is as follows.

(1) Article 18, paragraph (1) of the Local Tax Act (prior to amendment by Act No. 115 of 2011) provides that the right to collect local tax (right of a local body for the collection of money to be collected by the local body) is extinguished by prescription if it is not exercised for five years from the day following the statutory due date for payment, etc. Paragraph (2) of the same Article provides that in such case, invocation of prescription is not required and that the benefits of the prescription may not be waived. Paragraph (3) of the same Article provides that the provisions of the Civil Code apply mutatis mutandis to the prescription of the right to collect local tax unless otherwise provided for.

Article 18-2, paragraph (1) of the Local Tax Act (prior to amendment by Act No. 45 of 2017; the same applies hereinafter) provides that the prescription of the right to collect local tax is renewed when a notification concerning payment (item (i)), demand for payment (item (ii)) or other disposition becomes effective. In addition, Article 147 of the Civil Code (prior to amendment by Act No. 44 of 2017) sets forth attachment (item (ii)) and acknowledgement (item (iii)), etc. as grounds for the renewal of prescription.

(2) A. The appellant acquired the qualification for an insured person under the national health insurance program provided by Kitakawabe Town in Saitama Prefecture on September 21, 2008, and notified the same town to that effect on March 12, 2010. Incidentally, the same town merged with a neighboring city and neighboring towns and became the appellee on March 23, 2010.

Around April 1, 2010, a person who executes the duty of the Kazo City Mayor determined the amount of tax to be paid by P, the appellant's father who, as a householder, had the obligation to pay national health insurance tax for national health insurance covering the appellant, for fiscal 2008 of 251,500 yen (due date for the payment was May 31, 2010) and that for fiscal 2009 of 278,700 yen (due date for the payment was April 30, 2010) (hereinafter these determinations are to be referred to as the "Determinations," and claims pertaining to national health insurance tax imposed by the Determinations and delinquent charges therefor are to be referred to as the "Tax Claims"), and notified him to that effect.

B. On August 4, 2010, the appellant filed an action for the revocation of the Determinations, etc. against the appellee. However, on May 31, 2012, a judgment dismissing the aforementioned action for the revocation without prejudice became final and binding on the grounds that the action is unlawful as no objection has been filed in advance.

(3) A. On January 26, 2011, the appellee issued to P a written demand for payment concerning national health insurance tax based on the Determinations.

B. P died on November 18, 2011.

C. On January 24, 2012, the appellant paid to the appellee 59,700 yen for fiscal 2008 and 41,300 yen for fiscal 2009 out of national health insurance tax imposed based on the Determinations (hereinafter this payment is to be referred to as the "Payment in 2012").

D. On March 20, 2012, P's heirs, the appellant and his/her elder sister, established an agreement on division to the effect that the appellant succeeds to all P's obligations pertaining to his estate.

E. On October 25, 2012, the Kazo City Mayor gave the appellant a notice requesting that the appellant pays the amount of P's arrears pertaining to the Tax Claims by November 16, 2012 as an heir (hereinafter referred to as the "Notice of Succession") by a document titled as a written notice of succession of the obligation to pay tax.

(4) On January 10, 2017, on the premise that there is the amount in arrears of 624,700 yen in total with regard to the Tax Claims as of that date as stated in the "Unpaid Amount" and "Delinquent Charges" columns in the "Description of Delinquent Payment" attached to the judgment in first instance, the Kazo City Mayor attached the appellant's right to claim the refund of a deposit (Disposition of Attachment) as a disposition of delinquency and collected 624,700 yen from a third-party obligor, a bank, and then made the Disposition of Distribution to distribute the entire collected amount to the Tax Claims in accordance with a distribution statement dated January 13, 2017.

(5) In this action, the appellant recognizes that he/she has the obligation to pay the delinquent charges of 39,100 yen out of the aforementioned amount in arrears. However, on the other hand, the appellant argues that the claims pertaining to the remaining 585,600 yen (hereinafter referred to as the "Disputed Claims") have been extinguished by prescription and the disposition of delinquency made based on the Disputed Claims is illegal. Based on this argument, the appellant seeks the revocation of the part of the Disposition of Distribution pertaining to the Disputed Claims, etc. and the appellee's payment of money in the amount equivalent to the Disputed Claims.

On the other hand, the appellee argues as follows: as the Payment in 2012 falls under acknowledgement of an obligation and the Notice of Succession falls under a notification concerning payment, the extinctive prescription of the Disputed Claims was renewed by them.

3. The court of prior instance first ruled that based on the aforementioned facts, the Payment in 2012 could not be considered to fall under the acknowledgment of an obligation with regard to the Disputed Claims. The court of prior instance then determined as summarized below and dismissed the claim for the revocation of the disposition of distribution with prejudice on the merits and dismissed the action pertaining to the claim for the payment of money without prejudice.

(1) The Notice of Succession given on October 25, 2012 falls under a notification of payment referred to in Article 13, paragraph (1) of the Local Tax Act and has the effect of renewing prescription pursuant to Article 18-2 of the same Act. The extinctive prescription of the Disputed Claims has not been completed, when taking into account the fact that the Disposition of Attachment was made on January 10, 2017 before the passage of five years since the time when the prescription started a further run.

(2) The action to seek the payment of money filed by the appellant is considered as a mandamus action accompanied by an action for the revocation of an administrative disposition, and it is unlawful as it does not fulfill the requirement referred to in Article 37-3, paragraph (1), item (ii) of the Administrative Case Litigation Act, when taking into account that the claim for the revocation of the disposition of distribution should be dismissed with prejudice on merits.

4. However, the aforementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1) A. When the head of a local body intends to collect money to be collected by the local body from a taxpayer or a person in charge of special collection, the head must give such person a notification of payment by a document in which the amount to be paid, the due date for the payment, etc. are stated (Article 13, paragraph (1) of the Local Tax Act). Then, a local tax official must issue a written demand for payment if a taxpayer, etc. fails to pay money to be collected by a local body in full by the due date for the payment (Article 726, paragraph (1), etc. of the same Act). Furthermore, if a delinquent taxpayer who received a demand for payment fails to pay the money in full by the day on which 10 days passes from the date of issuance of the written demand for payment, the local tax official must attach the property of the delinquent taxpayer (Article 728, paragraph (1), item (i), etc. of the same Act). Taking into account the fact that step-by-step procedures are thus provided with regard to the collection of money to be collected by a local body, it should be said that the same Act does not expect that a notification of payment is given again with regard to money to be collected by a local body for which the amount of tax, etc. has been determined and a notification of payment has been given as part of the collection procedures.

Moreover, unlike a demand made by a private person, a notification concerning payment given by the head of a local body is given in accordance with certain procedures and form under the provisions of laws and regulations as the first step of the collection procedures for money to be collected by a local body. Therefore, Article 18-2, paragraph (1), item (i) of the same Act is interpreted as especially providing that such notification has the effect of renewing extinctive prescription. Taking such purport of the same item into account, it is reasonable to consider that only the first notification of payment has the effect of renewing prescription under the same item and that even if a similar notice is given again thereafter, it has only the effect as a mere demand.

B. If there is a succession, an heir succeeds to the decedent's obligation to pay tax (Article 9 of the Local Tax Act). If a notice of payment has been given to the decedent with regard to money to be collected by a local body pertaining to the succession, the effect of the notification should also be considered to be succeeded to by the heir. Therefore, a local tax official can immediately carry forward the subsequent collection procedures in relation to the heir, and it is considered unnecessary to give the same notification to the heir. In such case, even if a local tax official indicates to the heir the amount of tax to be paid again and gives the heir a notice requesting the payment, etc. thereof while specifying the due date for the payment, etc. in advance of a demand for payment or attachment from the perspective of protection of the heir's interest, etc., the notice should be considered to have only the effect as a mere demand, in the same manner as A. above.

Therefore, a notice to an heir to request the payment, etc. of money to be collected by a local body for which a notification of payment has already been given to the decedent while specifying the due date for the payment, etc. should not be considered to have the effect of renewing extinctive prescription under Article 18-2, paragraph (1), item (i) of the Local Tax Act with regard to the right to collect local tax pertaining to the notice.

(2) In this case, a person who executes the duty of the Kazo City Mayor made the Determinations and then notified P to that effect, and thereby, it can be said that the person gave a notice of payment with regard to the Tax Claims. Furthermore, a written demand for payment was also issued to P on January 26, 2011.

The extinctive prescription of the Tax Claims was renewed by the aforementioned notification of payment and was also renewed by the aforementioned demand for payment again, and it started a further run when 10 days passed from January 26, 2011 (Article 18-2, paragraph (1), item (ii) of the Local Tax Act). About five years and eleven months had passed thereafter before the Disposition of Attachment was made on January 10, 2017. As a ground for the renewal of prescription during this period, the appellee argues the fact that the Notice of Succession was given on October 25, 2012. However, according to the explanations made in (1) above, the Notice of Succession addressed to an heir, the appellant, with regard to the Tax Claims, for which a notification of payment and a demand for payment had already been made to P, does not have the effect of renewing prescription under item (i) of the same paragraph.

Based on these, the determination of the court of prior instance that the Notice of Succession has the effect of renewing prescription under the same item contains illegality of the erroneous interpretation and application of laws and regulations.

Then, the appellant is not recognized as having acknowledged, at the time of the Payment in 2012, the obligation with regard to the amount in arrears pertaining to the Disputed Claims, which the appellant did not pay at that time, in light of the fact that the appellant had consistently disputed over the amount of tax determined in the Determinations, for example, by filing an action for the revocation of the Determinations, as explained by the court of prior instance. Based on the aforementioned facts, there is no other ground for renewal.

For the reasons described above, it should be said that the Disputed Claims had been extinguished by prescription when the Disposition of Attachment was made. The part of the Disposition of Distribution pertaining to the Disputed Claims should be revoked as an illegal disposition of delinquency that was made despite the absence of tax claims.

(3) The appellant seeks the revocation of the part of the Disposition of Distribution pertaining to the Disputed Claims and also adds a claim for the payment of money in the amount equivalent to the Disputed Claims in a petition for incidental appeal and argues as follows: "The remaining money must be delivered to the delinquent taxpayer through partial revocation of the disposition of distribution." According to this argument, it is reasonable to consider the action pertaining to the same claim as an action for performance to seek the refund of money in the amount equivalent to the Disputed Claims as money paid by mistake on the premise that the Disposition of Distribution is partially defective. There are no circumstances where the legality of the action should be denied. Therefore, the action should be considered to be lawful.

According to (2) above, money distributed to the appellee based on the part of the Disposition of Distribution pertaining to the Disputed Claims should be refunded to the appellant.

5. The determination of the court of prior instance that dismissed the appellant's claim for the revocation of the disposition of distribution with prejudice on the merits and dismissed the action to seek the payment of money without prejudice based on opinions different from those described above contains violation of laws and regulations that obviously affects the judgment. The appellant's arguments are well-grounded as arguments to this effect, and of the judgment in prior instance, the part concerning these arguments should inevitably be quashed. According to the explanations made above, all the aforementioned claims should be upheld. On the other hand, for the final appeal concerning other claims filed by the appellant, the reasons for a petition for acceptance of final appeal were excluded by an order to accept a final appeal.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment.

Justice KANNO Hiroyuki

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice OKAMURA Kazumi