Seoul High Court 2008Nu21449 ( October 25, 2009)

Seoul Administrative Court 2007Guhap18543 (208.02)

An ex officio change in the name of the business operator shall not be deemed an administrative disposition.

In the process of managing business registration by the tax authority, the act of correcting the name of the disguised business operator in the name of the actual business operator ex officio is merely the correction of the main business operator among the relevant business facts and does not cause a change in the status of the business operator. Thus, it cannot be deemed an administrative disposition subject to appeal litigation

The contents of the decision shall be the same as attached.

쇠지지지지 3000 지지지은은은은 3000 아은은은은은은은은은 3000 아아은은은은은 3000 아아은은은은 3000 아은이 3000209Du586 Value Added, etc.

쇠지지 300 쇠지지지 3000 지지지지 3000 지지지지지 3000 개지지 3001. Na

2. BB

쇠지지300 쇠지지지 3000 지지지지 3000

2. The director of the male tax office.

Article 300 u u3000 u300 n u3000 n u3000 Seoul High Court Decision 2008Nu21449 decided March 25, 2009

쇠은은 지지 개은은 3000 개은은은 3000 개은은은은은 3000 이 이 이 3001. 27 January 27, 2002

44 44 44 44 44 45 44 444 64 44

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined.

1. As to the ground of appeal by Plaintiff BA

Article 5 (1) of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006; hereinafter referred to as the "Act") provides that "any person who starts a new business shall register with the head of the competent district tax office having jurisdiction over the place of business within 20 days from the date of commencement of the business under the conditions as prescribed by the Presidential Decree: Provided, That any person who intends to start a new business may register before the date of commencement of the business," and Paragraph (5) of the same Article provides that "if a business operator closes a new business or fails to start a business after the registration is made under the proviso of paragraph (1), the head of the competent tax office having jurisdiction over the place of business shall cancel the registration without delay." Meanwhile, Article 7 (1) and (3) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006; hereinafter referred to as the "Enforcement Decree") provides that a business operator may issue a business registration certificate within seven days from the date.

The purpose of business registration under the Value-Added Tax Act is to enable the tax authority to identify the taxpayer of the value-added tax and to secure the taxation data. This is a mere report of business fact, which is established by submitting a business registration application to the head of the competent tax office, and the issuance of the business registration certificate is merely an act of issuing a certificate verifying such registration. The ex officio cancellation by the tax authority under Article 5(5) of the Act is only the fact of business closure, and it does not cause a change in the status as a business operator, and thus, it cannot be deemed an administrative disposition subject to appeal litigation (see, e.g., Supreme Court Decision 9Du6903, Dec. 22, 2000). In light of the fact that the tax authority’s management process of business registration, the act of correcting the name of a disguised business operator in the name of the actual business operator ex officio is merely a corrected entry of the main agent of the relevant business, and it does not affect the status as a business operator

Recognizing the reasoning of the judgment of the first instance, the lower court determined that the action of the Plaintiff BB seeking revocation on the ground that the act of the Plaintiff BB’s business operator’s business operator’s change in the name of the Plaintiff BB by the head of Sung-nam Tax Office after recognizing the facts as stated in its reasoning constitutes the act of cancelling the business operator’s registration ex officio pursuant to Article 5(5) of the Act on the ground that the Plaintiff BB did not actually commence the business after business registration with respect to the Plaintiff BB, etc., and that the act of the Plaintiff BB constitutes an act of cancelling the business operator’s registration ex officio pursuant to Article 5(1) of the Act and Article 7(4) of the Enforcement Decree of the Act on the ground that the act of the Plaintiff B B, etc.’s change in the name of the Plaintiff B, etc. cannot be deemed an administrative disposition subject to appeal

Examining the above legal principles in light of the records, although the judgment of the court below is somewhat inappropriate in its reasoning, the conclusion that the court below dismissed the plaintiff Na-A's lawsuit on the ground that the act of change of the business name of the defendant Sung-nam Tax Office's ex officio cannot be an administrative disposition subject to appeal litigation is just, and there is no error in the misapprehension of legal principles as to the disposition of change of the business name of the business owner as otherwise alleged in

2. As to the ground of appeal by Plaintiff BB

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be borne by the imposing authority. However, if it is revealed that the facts of taxation requirement have been presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirement, unless the other party proves that the facts in question are not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 2003Du14284, Apr. 27, 20

citing the reasoning of the judgment of the court of first instance, the court below acknowledged that Plaintiff BB was an actual business operator who operated each of the instant companies by borrowing the name of relative or subordinate staff members with his children, and accordingly determined that the disposition imposing value-added tax on Plaintiff BB was lawful. In light of the above legal principles, the court below's fact-finding and judgment are just and acceptable, and there were no errors in the misapprehension of legal principles as to the substance over form principle as otherwise alleged in the ground of appeal, or in violation of the principle of allocation of burden of proof or the rules of evidence.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Dan 300 Mau300 Mau 3000 Mau Mau 3000 Mau3000

Justices Yinu300 Mau300 Mau3000

Dan 300 Ma300 Ma3000 Mau300 Mau300 Man Mal Dol3000 Dol-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is

Justices Yinu300 Mau300 Mau3000 can-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-