Suwon District Court 2010Guhap10717 ( October 28, 2010)

National Tax Service Review Corporation 2009-0027 ( December 30, 2009)

Notice of change in income amount shall be made by the head of the tax office or the director of the regional tax office.

Since the authority to notify changes in the amount of income shall belong to the head of a tax office having jurisdiction over the place of tax payment or to the head of a regional tax office having jurisdiction over the place of tax payment of corporate tax, the disposition that the defendant without jurisdiction notifies changes in the amount of income shall be deemed unlawful as a tax administrative disposition by an unauthorized administrative agency. The notice of changes in the amount of income

Article 192 of the Enforcement Decree of Income Tax Act

2010Nu40450 Nullification of a notice of change in income amount

Administrator of △ Construction Corporation, the rehabilitation company

○ Head of Regional Tax Office

Suwon District Court Decision 2010Guhap10717 Decided October 28, 2010

June 1, 2011

June 15, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The portion attributable to the defendant to BB Construction Co., Ltd. in the year 2003, March 3, 2009

5,858,881,210 won, the amount of 856,026,574 won for the year 2004, the amount of 2,925,965,828 won for the year 2005, the amount of 1,514,749,717 won for the year 2006, the amount of 148,520,000 won for each notice of change in income for the year 2007, the disposition of notice of change in income for the year 207 is all null and void (the plaintiff mentioned in the petition of appeal and the "Plaintiff" appears to be a clerical error of the "B Construction Corporation").

1. Details of disposition;

A. From October 17, 2008 to January 12, 2009, the Defendant conducted a tax investigation on BB Construction Co., Ltd. (hereinafter “B Construction”) pursuant to Article 6(2) of the Regulations on the Management of Investigations, which is the instructions of the National Tax Service, from October 17, 2008 to January 12, 2009. The Defendant discovered the external cost, etc. of processing as a result of the above tax investigation and deemed it as a bonus, and notified BB Construction of the change in the amount of income as stated in the purport of the claim (hereinafter “each disposition of this case”).

B. A rehabilitation procedure for BB construction commenced on May 6, 2009, and the Plaintiff was appointed as a custodian around that time.

(c) the location of the headquarters of BB Construction is EE CDD 900-3, 900-3.

D. Meanwhile, on May 4, 2009, BB construction filed a request for review seeking revocation of corporate tax, etc. according to the disposition of this case on December 30, 2009, upon which the Commissioner of the National Tax Service rendered a re-audit decision, reduced the amount of income income accrued in 2003 to KRW 4,211,673,690. Accordingly, the head of the EE Tax Office notified the Plaintiff of the change in the amount of income that reduced the amount of income equivalent to that of the Plaintiff on May 7, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

According to the relevant laws and regulations, the notice of change in the amount of income shall be made to the head of the tax office having jurisdiction over the place of tax payment or the director of the competent regional tax office having jurisdiction over the place of tax payment. Thus, in the case of each of the dispositions of this case on BB construction, the head of the EE tax office or the director of the competent regional tax office having jurisdiction over the place of tax payment shall be made. Nevertheless, the defendant, who is not the director of the competent regional

(b) Related statutes;

(Omission)

C. Determination

1) According to the provisions of relevant Acts and subordinate statutes, the notice of change of income amount provides that the tax office having jurisdiction over the place of tax payment of corporate tax, namely, the head of a tax office having jurisdiction over the place of tax payment of corporate tax, or the head of a regional tax office having jurisdiction over the place of tax payment of corporate tax, shall be the head of a tax office having jurisdiction over the place of tax payment of corporate tax. In addition, the notice of change of income constitutes an act of the tax office having a direct influence on corporate tax liability, which constitutes an administrative disposition subject to appeal litigation (see, e.g., Supreme Court en banc Decision 2002Du1878, Apr. 20, 20

Meanwhile, according to Article 9 of the Corporate Tax Act, the place of tax payment of a domestic corporation's corporate tax shall be the location of its head office or main office on the registry of the relevant corporation. In this case, the right to notify the change of income amount to BB construction shall belong to the head of the tax office having jurisdiction over the place of tax payment of corporate tax on BB construction or to the head of the tax office having jurisdiction over the head of the competent regional tax office or the head of the competent regional tax office or the head of the EE branch office. Therefore, each of the dispositions of this case against BB construction notified by the Defendant without jurisdiction shall be deemed unlawful as a tax administrative disposition of the relevant administrative agency without authority (see, e.g., Supreme Court Decisions 2002Da61897, Jan. 10, 2003; 20

2) Furthermore, in order for a defective administrative disposition to become null and void as a matter of course, there is insufficient reason for illegality in the disposition. The defect must be objectively obvious and serious in violation of the important part of the law. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decision 2005Du14363, Jun. 30, 2006).

In light of these legal principles, we look at whether the above defects are serious and apparent.

As seen earlier, by the Supreme Court en banc Decision 2002Du1878 Decided April 20, 2006

The Supreme Court held that the notice of change in the amount of income is a tax administrative disposition subject to appeal litigation. However, the Supreme Court held that the tax office’s payment time of income tax automatically established and fixed at the time of paying the amount of income does not constitute an independent administrative disposition subject to appeal litigation under the premise that the tax office’s procedural requirements are merely a provision for the collection disposition (see, e.g., Supreme Court Decisions 94Nu552, Apr. 12, 1994; 92Nu12483, Jun. 8, 193; 92Nu12483, Jun. 1, 1993). In light of the relevant laws and regulations, it is unclear whether the notice of change in the amount of income can be seen as an administrative disposition subject to appeal litigation, and thus, it is difficult to recognize the illegality of the tax disposition by the defendant as the owner of the tax office under the jurisdiction of the National Tax Service’s order (No. 1838).

3. Conclusion

Since the judgment of the first instance is justifiable, the appeal filed by the plaintiff is dismissed.