National Tax Service Review Division 2012-0038 (2012.30)

Tax administrative litigation instituted without due process of transfer is illegal.

Since a request for review filed after the lapse of 90 days from the date on which the plaintiff became aware of the disposition of this case is inappropriate to have been filed after the lapse of the deadline for request, the plaintiff's lawsuit of this case is illegal to have not gone through lawful procedures

Article 56 of the Framework Act on National Taxes, Article 8 of the Framework Act

2012 disposition of revocation of imposition of value-added tax, etc.

IsaA

Head of the High Tax Office

November 20, 2012

January 22, 2013

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's imposition of 00 won of the value-added tax of 2008 on September 16, 2009, and 000 won of the corporate tax of 2008 against the plaintiff, and the imposition of 000 won of the corporate tax of 2008 on January 10, 201, shall be revoked.

1. Details of the disposition;

A. BBN Entertainment Co., Ltd. (hereinafter referred to as “BBN Entertainment”) 2008.

6.3. A corporation established for the purpose of celebling and transmitting business, and a corporation did not pay 00 won of value-added tax for 2008, corporate tax for 2008, and 000 won of corporate tax for 2008 (hereinafter referred to as "amount in arrears" for each of the above amounts.

B. The Plaintiff is indicated as a shareholder holding 1,000 shares (55%) out of 20,000 shares issued in the register of shareholders of BBN Entertainment submitted to the Defendant, and was indicated as a representative director from June 17, 2008 to September 25, 2008 in the corporate register of BBN Entertainment.

C. On September 16, 2009 and January 10, 2011, the Defendant imposed corporate tax and value-added tax amounting to 55% of the amount of delinquent tax of this case (hereinafter “the first disposition in this case and the second disposition in January 16, 2009”) on the property owned by BBN Entertainment, on the ground that the Plaintiff was an oligopolistic shareholder of BBN Entertainment, and on the ground that the Plaintiff was the second taxpayer, and on the other hand, as stated in the purport of the claim, the Defendant imposed corporate tax and value-added tax amounting to 55% of the amount of delinquent tax of this case (hereinafter “the disposition in September 16, 2009”) and “the disposition in this case” as of January 10, 201, and “each disposition in general referring to each of the above dispositions”).

D. On November 18, 201, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on the instant disposition, but the Commissioner of the National Tax Service dismissed the request for examination after the lapse of 90 days from the date on which each of the instant dispositions was lawfully served on the Plaintiff on December 19, 201.

[Ground of Recognition] The non-satched facts, Gap evidence 1, 2, and Eul evidence 1 to 3, and Eul evidence 7, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

As to the Plaintiff’s assertion seeking revocation of each of the dispositions of this case, the Defendant asserts that the lawsuit of this case is unlawful as it did not go through legitimate electric island procedures.

B. Determination

(1) An administrative litigation seeking the revocation of a tax disposition must necessarily undergo a request for review or adjudgment as prescribed by the Framework Act on National Taxes, and in this case, the request for review must meet the lawful requirements, and if the request for review, etc. has been filed, it cannot be deemed that the procedure under the Framework Act on National Taxes has gone through the complete procedure as prescribed by the Framework Act on National Taxes. Meanwhile, under Article 8(1) of the Framework Act on National Taxes, the documents prescribed by this Act or other tax-related Acts provide that the documents shall be served at the domicile, residence, place of business or office of the title holder, and the address here refers, in principle, to the place which is the basis of life, but in the absence of special circumstances, the documents shall be included therein, and if the title holder expressly or explicitly delegates the right to receive postal items or other documents to another person, it shall be deemed that the documents have been delivered to the principal by receiving the relevant documents (Supreme Court Decision 98Du161 delivered on April 10, 1998).

(2) According to the whole purport of the entry and pleading between the plaintiff and Eul, and Eul, Eul evidence 1 to 3, and Eul evidence 1 to 5, and Eul, and the whole purport of each entry and pleading, respectively, (i) from March 3, 2006 to March 23, 201, the plaintiff made resident registration No. 000,000, Seoul Seodaemun-gu, Seoul, and it was confirmed that the notice of tax payment of the disposition No. 1 was sent to the plaintiff's above resident registration by registered mail on September 16, 2009 and the delivery was completed. (ii) The plaintiff's notice of tax payment of the disposition No. 2 was sent to the plaintiff's above resident registration place on January 3, 2011; and (iii) the plaintiff's notice of tax payment was sent to the plaintiff's family member on January 1, 2011; and (v) the defendant, on January 10, 2011, issued the plaintiff's notice of tax payment to the plaintiff 10.

(3) Therefore, the plaintiff's lawsuit of this case is illegal as it did not go through legitimate transfer procedure, and the defendant's above main defense pointing this out was justified.

3. Conclusion

Then, the plaintiff's lawsuit of this case is inappropriate, and it is decided as per Disposition by deciding to dismiss it.