Whether a taxation disposition issued by a person who asserts as the representative in name is void as a matter of course.

Even if the plaintiff, who is a representative in the name of the actual business entity, was found to be erroneous in the taxation disposition, the taxation disposition cannot be deemed to be null and void.

Article 41 [Calculation by Wrongful Acts] of the Income Tax Act

1. The plaintiff's claim is dismissed.

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

The Defendant confirmed that each disposition of KRW 11,607,00 on February 2, 200 and KRW 12,904,50 on February 2, 2000 on the second term value-added tax for the year 199 against the Plaintiff and the first term value-added tax for the year 2000 is null and void.

1. Details of taxation; and

A. On November 12, 1998, the Plaintiff filed an application for business registration with the representative as the Plaintiff, on the part of the Defendant on November 12, 1998, for the business place domicile of 252-1, 252-1, the category of business as packing machine manufacturing business, the trade name as ○ Engineering, and filed a report on business closure on April 1, 2002.

B. The Plaintiff received a tax invoice of Chapter 14 (225,00,000 in total supply value) from Kim ○○ and Lee ○○ who operated ○○○○○ in the second and second half years of 1999 and the first period of 2000, and filed a return by deducting each of the above tax amounts on each of the above tax invoices as the input tax amount by deducting each of the above tax amounts from the input tax amount (hereinafter each of the above tax invoices is called the instant tax invoices)

C. The Defendant, on February 2, 2004, calculated the value-added tax for the second term portion of the value-added tax for the year 1999, on the basis of the second term portion of the value-added tax for the year 2000, imposed the tax amount on KRW 12,904,50 as the value-added tax for the first term portion of the value-added tax for the year 2000 (hereinafter collectively referred to as the “instant taxation”), and imposed the value-added tax for the second term portion of the value-added tax for the year 199, on September 1, 2004.

D. The Plaintiff, who was dissatisfied with the instant tax disposition and the said tax disposition on September 1, 2004, filed an objection on November 4, 2004, but filed a request for review with the Commissioner of the National Tax Service on March 15, 2005. On June 17, 2005, the Commissioner of the National Tax Service dismissed the Plaintiff’s request for review on the grounds that the period for filing a request for review has expired. As to the instant tax disposition on September 1, 2004, the ○○ Engineering’s substantial business operator was not the Plaintiff but the Korea-Japan.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1 and 2, the purport of the whole pleadings

2. Whether a taxation disposition is legitimate

A. The plaintiff's assertion

The Plaintiff only lent the name in the opening of ○○○○, which is a high-speed ship, to the Plaintiff, and actually operated ○○ Engineering. The instant disposition against the Plaintiff, which is a nominal owner, was imposed against the principle of substantial taxation on a person who does not have any legal relation or factual relation subject to taxation, and thus, is a disposition of substantial invalidation, apparent and apparent defect.

(b) Related statutes;

Basic Act

Article 14 (Real Taxation)

(1) If the ownership of the income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom it belongs exists, the tax-related Acts shall apply to such person to whom it actually belongs as a taxpayer.

C. Determination

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 the defect is grave and obvious. Whether the defect is grave and obvious must be determined by reasonably examining the purpose, meaning, function, and the special nature of the specific case. The defect in the taxation disposition against a person who does not have any legal relation or factual relations subject to taxation is grave and obvious. However, in a case where there are objective circumstances to believe that it is subject to taxation with respect to a certain legal relation or factual relations which are not subject to taxation, if it is apparent that it is possible to accurately investigate the factual relation, it cannot be deemed apparent even if the defect is serious (see, e.g., Supreme Court Decision 200Da24986, Jul. 10, 201). However, the imposition disposition of the value-added tax on a nominal business operator cannot be deemed null and void as it is objectively apparent that it violates the substance over form principle.

Therefore, even if the Plaintiff, which is merely a representative in the name of the pertinent taxation, was found to be unlawful as a substantial business operator, the instant taxation disposition cannot be deemed to be null and void as a matter of course.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Supreme Court Decision 2007Du24999 ( October 28, 2008)]

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff (Plaintiff).

All of the records of this case and the judgment of the court below and the grounds of appeal were examined. However, the grounds of appeal on the grounds of appeal are not included in the grounds stipulated in each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per