An administrative litigation filed after 90 days have passed since a written decision of adjudication was served is illegal.

An administrative litigation which is filed after 90 days have passed since a written decision on adjudication was served, is illegal as it is filed after the period for filing a lawsuit has expired.

Article 56 of the Framework Act on National Taxes concerning other Acts

2014Guhap6310 Revocation of Disposition of Imposition of Value-Added Tax

OO et al.

O Head of tax office

July 7, 2015

August 18, 2015

1. All of the instant lawsuits are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The Defendant’s imposition disposition of KRW 2,129,140 on October 16, 201 for the second term portion of value-added tax for the year 201 against the Plaintiffs respectively, and KRW 8,792,50 on the first term portion of value-added tax for the year 2012, respectively, and KRW 776,00 on the second term portion of value-added tax for the year 2012, respectively, and KRW 2,113,690 on the second term portion of value-added tax for the year 2012, and KRW 5,805,170 on the corporate tax for the business year 2010, respectively, shall be revoked.

1. Basic facts

A. The OO environment Co., Ltd. (hereinafter “OO environment”) was in arrears with the aggregate of the value-added tax from 2010 to 2012 and the corporate tax from 2012, while engaging in a general waste transport and disposal business in OO-dong OO-dong OO-P.

B. As of October 16, 2013, the Defendant: (a) designated the Plaintiffs as shareholders holding 50% each of their shares in the register of shareholders of the non-party company as secondary taxpayers (point shareholders); (b) imposed the Plaintiffs each of the value-added tax for the second period of 201, 129,140, each of the value-added tax for the second period of 201, 8,792,550, each of the value-added tax for the first period of 2012, and 76,000, each of the value-added tax for the second period of 2012, 2,113,690, and 5,805,170, each of the corporate tax for the second period of 2010, and imposed and notified each of the Plaintiffs of KRW 4,057,740

C. The Plaintiffs were dissatisfied with each of the above taxation dispositions and requested for adjudication to the Tax Tribunal, but all of the aforementioned claims were dismissed on June 30, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 2-1, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 4, the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

The plaintiffs asserted that the plaintiff's lawsuit of this case seeking revocation of each of the above taxation dispositions did not constitute an oligopolistic shareholder who was merely the shareholder in the name of the non-party company and did not actually exercise the shareholder's right, and that the plaintiff filed the lawsuit of this case only after the lapse of 90 days from the date when the decision of the Tax Tribunal on each of the above taxation dispositions was notified by the plaintiffs. Thus, the lawsuit of this case is unlawful because

B. Determination

1) According to Article 56 of the Framework Act on National Taxes, any administrative litigation against any illegal disposition, which is a disposition under the Framework Act on National Taxes, shall not be instituted without going through a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon (Article 56(2)). In such a case, the administrative litigation shall be filed within 90 days from the date when a decision on the request for evaluation or adjudgment is notified (main sentence of paragraph (3)), and the above period is a peremptory term (Article 59). In addition, pursuant to Article 59 of the Framework Act on National Taxes, an applicant for examination or adjudgment may appoint a certified public accountant registered under Article 20-2(1) of the Certified Tax Accountant Act as his/her agent (Article 20-2(1)

On the other hand, under Article 8 (1) of the Framework Act on National Taxes, documents prescribed by the Framework Act on National Taxes shall be served on the domicile, temporary domicile, place of business or office of the designated person (referring to the person designated as the recipient of the documents), and under Article 10 of the Framework Act on National Taxes, documents under the above Article 8 shall be served by means of delivery, mail or electronic delivery (Article 10). In cases where documents relating to notification, demand and disposition of tax payment or an order issued by the Government under tax-related Acts are served by mail, they shall be served by registered mail (main sentence of paragraph (2). In such cases, if a person to be served at the place to be served is not present at the place to be served, documents may be served on his/her employees and other employees or persons living together

In addition, where a person to receive documents, such as a person liable for duty payment, who is the other party to a tax disposition, has expressly or explicitly delegated the right to receive postal items and other documents to another person, the delegated person shall be deemed to have received the relevant documents, and the delegated person shall be deemed to have lawfully delivered the documents to the person to receive the documents, and the delegated person shall not be deemed to have been an employee or a person living together (see, e.g., Supreme Court Decision 2010Da108876, May

2) According to the overall purport of evidence Nos. 1, 2, and 1-2 of evidence Nos. 1, 2, 3, and 4 of evidence Nos. 2-1, 1-2, 3, and 4 as to the instant case, the Plaintiffs filed a request for a judgment to revoke the said taxation by appointing a certified tax accountant KimO as his/her agent on Jan. 27, 2014 after the Defendant received the said taxation disposition. The Tax Tribunal dismissed the Plaintiffs’ request on Jun. 30, 2014. On July 2, 2014, the said written decision was served to the seat of the office of the certified tax accountant KimO, who is his/her agent, and at the time of the receipt of the said written decision by MaO, which is the corporate partner of KimO.

In light of the above legal principles and legal provisions, it is reasonable to view that the authority of the Tax Tribunal, an agent of the plaintiffs, is naturally included in the authority to receive the relevant decision of adjudication from the Tax Tribunal. Moreover, the authority to receive the said decision of adjudication at the seat of the KimO’s office constitutes an employee or other employee of KimO as provided by the former part of Article 10(4) of the Framework Act on National Taxes and thus is entitled to receive the said decision of adjudication instead of KimO. Therefore, the decision of the Tax Tribunal ought to be deemed to have been duly served on July 2, 2014 by OptionalO upon receipt of the said decision of adjudication.

However, the fact that the plaintiffs filed the instant lawsuit on October 6, 2014 after the lapse of 90 days from the plaintiffs is apparent in the record. As such, the instant lawsuit is unlawful since it was filed after the lapse of the period for filing the lawsuit.

3. Conclusion

Therefore, since the plaintiffs' lawsuit of this case is unlawful, it is decided to dismiss all of the lawsuits. It is so decided as per Disposition.