Daejeon District Court-2013-Gu Partnership-10196 ( April 17, 2014)

Where only the sum of additional taxes is entered, the imposition disposition shall be unlawful.

When the principal tax and the additional tax are to be imposed together by a tax payment notice, each tax amount and the calculation basis, etc. shall be described in the tax payment notice.

Article 9 (Notification, etc. of Tax Payment)

Daejeon High Court 2014Nu10361

OO Corporation

O Head of tax office

Daejeon District Court 2014Guhap10196

2015.03.05

2015.03.26

1. Scope of the deliberation of the political party;

In the first instance court on January 4, 2013, the Plaintiff filed a claim for revocation of the imposition disposition of value-added tax of 000 won (including additional tax 000 won) for the second half-year value-added tax against the Plaintiff on 4, 2007, and the court of the first instance rendered a judgment that fully accepts the Plaintiff’s claim. The Defendant appealed against this, and the Plaintiff appealed the claim in the first instance court that the Plaintiff withdraws the claim concerning the principal tax from the imposition disposition of value-added tax and only maintains the claim for the penalty tax portion. As such, the scope of the trial judgment per instance is limited to the claim for revocation of additional tax of 00 won for the second half-year value-added tax of 2007, which was substituted by the Defendant on

2. Details of the disposition;

A. The Plaintiff supplied apartment units (hereinafter “instant apartment units”) of national housing size (hereinafter “the instant apartment”) within the Daejeon OO-dong 000, Daejeon OO-dong 000 during the taxable period of the value-added tax in February 2007, and performed balcony expansion construction (hereinafter “instant service”) to some households at the buyer’s option.

B. The Plaintiff determined that the supply of the instant service is included in the supply of the instant apartment subject to value-added tax exemption and declared the value-added tax exemption on the instant service.

C. On January 4, 2013, the Defendant: (a) determined that the instant service was supplied separately from the supply of the instant apartment, and determined that it constitutes subject to value-added tax; (b) imposed value-added tax for the second term of 2007 on the Plaintiff (including KRW 000, KRW 000 for additional tax on negligent tax returns, and KRW 000 for additional tax to be issued); and (c) revised the disposition of imposition of value-added tax for the first term of 200 on January 17, 2013 to KRW 00 for additional tax (including KRW 000 for additional tax) (hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 3 (including paper numbers), the purport of the whole pleadings

3. The assertion and judgment

A. The parties' assertion

(1) The Plaintiff asserts to the effect that “The portion of the penalty tax in the instant disposition is unlawful since the Plaintiff’s supply of the instant service is erroneous as being exempt from value-added tax, and in particular, the Plaintiff constitutes a business operator that can issue receipts instead of the tax invoice, and thus, the portion of additional tax to issue the tax invoice is unlawful.”

(2) As to this, the Defendant asserts to the effect that “(i) the Plaintiff’s misunderstanding that the Plaintiff was subject to value-added tax exemption is merely a statutory site, etc., and it does not constitute a business operator entitled to issue receipts instead of a tax invoice.” The Plaintiff asserts that “The defect in the procedure of the instant tax notice was supplemented or cured, as the tax amount by type and the basis for calculation are specified in the tax notice issued on January 4, 2013, which was made before the reduction was corrected on January 17, 2013.

B. Determination

(1) When a single tax notice imposes both a principal tax and a penalty tax, the individual tax amount and the basis for calculation shall be stated in the tax notice separately. In addition, in a case where multiple types of penalty tax are to be imposed, it is natural for a taxpayer to per se by distinguishing the amount and the basis for calculation of each tax disposition from each other. As such, in a case where the penalty tax is imposed, the imposition of penalty tax is unlawful (see, e.g., Supreme Court Decision 2010Du12347, Oct. 18, 2012).

However, even if there is any defect in the tax payment notice, if it is evident that a taxpayer is not at all hindered in the decision-making on whether to object to the tax payment notice and filing an objection, the defect in the tax payment notice may be corrected or cured (see, e.g., Supreme Court Decision 9Du8039, Mar. 27, 2001).

(2) As can be seen by comprehensively taking account of the overall purport of the pleadings, the part of the penalty tax in the instant disposition is KRW 000,000, which was the remainder of the penalty tax imposed as of January 4, 2013. The tax notice issued as of January 17, 2013 did not include the separate penalty tax by type and does not include the basis for calculating the penalty tax. Meanwhile, the tax notice issued as of January 4, 2013, included the separate penalty tax amount by type before the reduction and the basis for calculating the tax amount. However, even if each tax notice was issued as of January 4, 2013 and January 17, 2013, the defect in the grounds for calculating the penalty tax in the instant disposition cannot be found to have been corrected or corrected as of January 17, 2013, and thus, it cannot be seen that the Plaintiff did not have any defect in the grounds for calculating the penalty tax in the instant disposition.

(3) Therefore, the penalty part among the instant disposition is unlawful without any further determination as to its substantive defect.

4. Conclusion

Therefore, the plaintiff's claim concerning the additional tax amount among the disposition of this case shall be accepted due to its reasons, and the judgment of the court of first instance is just, and thus the defendant's appeal is dismissed as it is without merit. However, the decision of the court of first instance is delivered with the decision of the court of first instance as it was modified in accordance with the plaintiff's reduction of claim at the court of first instance (the lawsuit concerning the main tax amount among the disposition of this case was withdrawn from the court of first instance and this part of the judgment became null and