[행정처분취소(부가가치세부과처분취소)청구사건][고집1983(형사특별편),242]
propriety of administrative litigation seeking revocation of disposition not to refund value-added tax
In order to seek a cancellation or change of an administrative disposition through an appeal litigation, there must be a specific disposition by the administrative agency. Thus, in the event that the administrative agency argues that the pertinent taxation disposition is lawful and that there is no obligation to refund the amount of tax paid, and that there is a taxpayer who has not filed an application for refund with respect to the amount of tax paid, it cannot be deemed that there is a specific disposition by the administrative agency not to refund the amount of tax already paid. Therefore, in this case, seeking a cancellation of the unpaid disposition itself would result in seeking a performance of refund, which would result in seeking a benefit of administrative disposition against the administrative agency, and this would not be subject
Article 1 of the Administrative Litigation Act
East Petroleum Chemical Corporation
Head of Ulsan District Office
The instant lawsuit is dismissed.
Litigation costs shall be borne by the plaintiff.
(1) Main intent of the claim
On October 16, 1980, the Defendant confirmed that the imposition of value-added tax on the attached list against the Plaintiff is null and void.
Litigation costs shall be borne by the defendant.
(2) Claim of the preliminary claim
The disposition that the Defendant did not refund the value-added tax on the attached list to the Plaintiff shall be revoked.
Litigation costs shall be borne by the defendant.
1. In full view of the whole purport of the pleadings in the statements in Eul evidence Nos. 1 through 4 (the evidence No. 2-1 to 4 of the evidence No. 1) for which there is no dispute in the establishment, the defendant, on Oct. 16, 1980, issued a notice on the value-added tax on the attached list on the ground that the plaintiff paid the fees to the plaintiff under the patent and technology introduction contract to the plaintiff from the non-party PPP SP shower (hereinafter the non-party company) for the construction of a factory for the production of petroleum chemical fiber, and did not perform the duty to pay value-added tax on behalf of the non-party company under Article 34 of the Value-Added Tax Act
2. (1) The plaintiff company concluded a patent and technology introduction agreement on September 29, 1969 with respect to the construction of a factory which produces the above product on September 1, 1969 and completed the construction of the factory on April 30, 197, and the supply of the services such as patent and technology introduction was completed before July 1, 197, which was enforced under the Value-Added Tax Act. Further, the plaintiff company is the taxpayer of the goods and services for the purpose of ensuring the convenience of taxation and securing the above tax, and the taxpayer of the goods and services is the taxpayer of the above tax, who received the service by collecting the value-added tax from the non-party company for the purpose of securing the above 1st, and the taxpayer is not obliged to pay the above tax by proxy for the reasons that the non-party company did not have any other duty to pay the above tax because it did not have any other duty to pay the above tax by proxy because it was based on the premise that the non-party company, which is the non-party company under the Value-Added Tax Act, does not have any such duty to pay the above tax.
(2) As above, as long as the taxation disposition becomes null and void and the plaintiff does not have an obligation to pay the tax already paid by the plaintiff, the defendant is obligated to pay the tax already paid by the plaintiff to the plaintiff, even though the plaintiff did not pay the tax amount to the plaintiff. Thus, the non-payment of the tax amount should be revoked. Thus, the administrative disposition subject to appeal litigation refers to a specific act directly related to the rights and obligations of the other party, such as ordering the establishment of rights or the burden of obligations in accordance with laws and regulations, or other legal effects of the administrative agency's unilateral declaration of intention. Thus, the administrative disposition is a specific act in relation to the rights and obligations of the people. Therefore, in order to seek cancellation or modification of the administrative disposition as an appeal litigation, the administrative disposition must be subject to specific disposition by the administrative agency. Thus, the defendant asserts that the defendant did not have an obligation to pay the tax amount lawfully paid by the plaintiff, and it cannot be deemed that there is a specific disposition that the defendant does not have an obligation to pay the tax amount already paid by the plaintiff. Further, the plaintiff's claim for cancellation of the administrative payment cannot be accepted.
Thus, the plaintiff's lawsuit of this case is not necessary to determine the merits, so it shall be dismissed, and it is decided as per Disposition by applying Article 14 of the Administrative Litigation Act and Article 89 of the Civil Procedure Act to the burden of litigation costs.
Judges Yoon Young-ok (Presiding Judge)