부과처분의 하자가 중대하므로, 주류 도매상이 아닌 주류중개업으로 판단한 당초 판결은 정당함[일부패소]
Seoul High Court 2009Nu37069 ( October 07, 2010)
Since the defect in the disposition of imposition is serious, the original decision that judged as a liquor brokerage business other than a liquor wholesaler is justifiable.
It is reasonable to view that the disposition of this case was made by a public official with ordinary caution and interest at the time of the disposition of this case, and that the plaintiff's business type could have known of the fact that the plaintiff's business type was an alcoholic beverage brokerage business, not an alcoholic beverage wholesale business. However, the disposition of notice on the violation of the issuance of the tax invoice is not unlawful
2010Du24326. Detailed and nullification of the global income disposition
-Appellee
Section AA
1 other than the head of the Goyang Tax Office
Seoul High Court Decision 2009Nu37069 Decided October 7, 2010
May 9, 2012
All appeals are dismissed.
The costs of appeal are assessed against each appellant.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the ground of appeal by the defendant Goyang Tax Office
In order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and its defect is objectively and objectively in violation of Acts and subordinate statutes, and in determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the pertinent taxation, shall be examined as a teleological purpose and at the same time, reasonable consideration should be made on the specificity of the specific case itself (see, e.g., Supreme Court Decisions 84Nu419, Jul. 23, 1985; 2006Du14582, Mar. 15, 2007). Examining the reasoning of the lower judgment in light of the above legal principles and records, the lower court recognized the facts as stated in its reasoning after comprehensively considering the evidence adopted by the lower court, and it is reasonable to view that the instant disposition was in violation of the laws and regulations, and it is objectively clear that the Plaintiff’s business form was aware or known even if based on the judgment of public official with ordinary care and interest at the time of the instant disposition.
2. Plaintiff’s ground of appeal
A. The crime under Article 11-2 (1) and (2) of the former Punishment of Tax Evaders Act (amended by Act No. 7321 of Dec. 31, 2004) and Article 9 (1) 3 of the same Act, which punishs the act of not issuing a tax invoice or of not issuing a tax invoice, are different from the crime under Article 11-2 (1) and (2) of the same Act and the crime under Article 9 (1) 3 of the same Act, which punishs the act of evading taxes, such as value-added tax, by fraud or other unlawful act, are different from each other, and the crime under Article 11-2 (1) and (2) of the same Act and Article 9 (1) 3 of the same Act does not include both unlawful and responsible contents of any other crime. Thus, if the value-added tax is evaded by a method of not issuing a tax invoice, the court below's determination that the disposition of this case is legitimate, contrary to what is alleged in the grounds of appeal.
B. In addition, the lower court determined that, even if there were defects in the instant notice disposition, and even if such defects are serious, it cannot be made until it is evident. As long as the lower court’s judgment was justifiable, this part of the lower court’s assumptive judgment did not adversely affect the conclusion of the judgment, and thus, the grounds of appeal on this point cannot be accepted without further
3. Conclusion
Therefore, all appeals by the Plaintiff and the Defendant Goyang Tax Office are dismissed, and the costs of appeal are to be borne by each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.