객관적으로 명백한 하자가 없는 부과처분은 당연무효로 볼 수 없음[국승]
Seoul Administrative Court-2016-Gu Partnership-60836 ( March 30, 2017)
A disposition of imposition without objectively apparent defect shall not be deemed to be void as a matter of course.
(1) The Plaintiff’s 75% shares of the instant company can only be found to have been a beneficial shareholder through an accurate investigation. Thus, even if there is a defect that misleads the Plaintiff as an oligopolistic shareholder in the instant disposition, it cannot be said that such defect is objectively apparent, and thus, such disposition cannot be deemed null and void as a matter of course.
Article 39 (Secondary Liability to Pay Taxes by Investor)
Article 55 of the Framework Act on National Taxes
2017Nu46242 Revocation of revocation of designation as a person liable for secondary tax payment.
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○ Head of tax office
Seoul Administrative Court Decision 2016Guhap60836 decided March 30, 2017
August 22, 2017
August 29, 2017
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
On October 29, 2015, the judgment of the court of first instance is revoked. In full view, it is confirmed that each imposition of KRW 607,530, corporate tax of 2014 against the Plaintiff on October 29, 2015, KRW 42,241,660, and value-added tax of KRW 39,450,30, which became final and conclusive value-added tax of KRW 1 in 2015 is invalid.
Preliminary, each of the above dispositions shall be revoked.
1. Quotation of judgment of the first instance;
The court's reasoning concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for the addition of the following matters to the judgment of the court of first instance. Thus, this case is quoted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act
○ No. 5 of the first instance court ruling No. 7 of the fifth instance court ruling is without merit, and the following is added:
(1) The plaintiff asserts that the plaintiff's assertion of invalidity of the taxation disposition by the second taxpayer should be excluded from the requirement of ‘the objective apparentness', and even if not, such requirement should be mitigated after the investigation and verification of facts. However, in determining the invalidity of the taxation disposition by the second taxpayer, there is no reasonable ground to exclude or relax the requirement of ‘the objective apparentness' that is different from the other taxpayer in relation to the second taxpayer, so the plaintiff's assertion is without merit).
○ The following is added to the 6th sentence of the first instance court, the 9th sentence, the 9th sentence.
[Dissenting, the Plaintiff asserts that the statutory provisions of the Framework Act on National Taxes, which require the principle of administrative appeal transfer, are unconstitutional, such as violating the principle of equality. However, unlike the case of a general administrative disposition, if the Framework Act on National Taxes requires an administrative appeal in the filing of a lawsuit seeking revocation of a tax disposition, it is reasonable to ensure uniformity in administration by requiring professionalism and technical nature in the taxation disposition and by making it necessary in large and uniform manner to achieve uniformity in administration (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba29, Dec. 29, 2016). The Plaintiff’s above assertion is without merit)
2. Conclusion
Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit.