Cho Jae-2014-China-5064 ( October 23, 2015)

Where the previous lawsuit is withdrawn and a new lawsuit is deemed to have been instituted by changing the purport of the claim to an exchange, the period for filing the lawsuit shall be the time when the lawsuit is modified.

Where an action to confirm the invalidity of the same administrative disposition has been filed and thereafter the claim of the same disposition has been exchanged as a lawsuit seeking the revocation of such disposition, whether the period for filing the action for revocation shall be determined at the time of filing the action to confirm the invalidity.

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

2015Guhap886 201

Hao

○ Head of tax office

.01.10

oly 2019.14

1. The plaintiff's primary claim and the conjunctive claim shall be dismissed;

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

Cheong-gu Office

The imposition of global income tax of KRW 12,332,00 on the Plaintiff on July 16, 2014 shall be revoked.

Preliminaryly, on July 17, 2014, it is confirmed that the decision of non-adopted pre-assessment review that the Defendant made to the Plaintiff is invalid.

1. Details of the disposition;

A. On the ground that the Plaintiff was suspected of omitting the amount of income in the global income tax for the year 2012, the Defendant: (a) selected the Plaintiff as a person subject to investigation; (b) conducted an investigation into the part of global income tax for the year 2012 from April 7, 2014 to April 26, 2014; (c) loaned money to ○○ from January 2, 2012 to September 24, 2012; and (d) notified the Plaintiff of the results of an investigation into the amount of income for deducting the amount of KRW 84,894,00 from the total amount of income of KRW 84,894,00 from the amount of income calculated by deducting the amount of income subject to simple expense (25.7%) from the amount of income of KRW 84,894,000 from the amount of income to the Plaintiff on April 30, 2014; and (d) notified the Plaintiff of the results of tax investigation under the main sentence of Article 2812-138-2.

B. On June 3, 2014, the Plaintiff filed a request for pre-assessment review with the Defendant. On July 15, 2014, the Defendant rendered a decision not to adopt the Plaintiff’s request for pre-assessment review (hereinafter “instant decision”), and on July 16, 2014, determined and notified the Plaintiff of KRW 12,332,070 of the global income tax reverted to the year 2012.

C. The Plaintiff filed an appeal with the Tax Tribunal on the imposition of global income tax for the year 2012. On February 23, 2015, the Tax Tribunal rendered a decision to rectify the tax base and tax amount calculated by subtracting KRW 2,750,000 from total income and dismissing the remainder of the Plaintiff’s appeal (this decision was notified to the Plaintiff on February 26, 2015), with respect to the imposition of global income tax for the year 2012.

On March 11, 2015, the Defendant corrected the tax amount of global income tax of KRW 11,689,770 for the year immediately preceding 2012 (hereinafter referred to as “instant disposition”) by reduction of KRW 11,689,770 for the global income tax of KRW 11,689,770 for the year remaining after reduction was corrected (hereinafter referred to as “the instant disposition”).

[Reasons for Recognition] Each entry of Gap evidence Nos. 2 and 4 (including paper numbers), the purport of the whole pleadings

2. Whether the designation of a litigation performer is illegal;

A. The plaintiff's assertion

In submitting a letter of designation of a litigation performer, the defendant shall obtain approval from the director of the regional tax office of ○○○ who is a superior. Since the defendant submitted a letter of designation of the litigation performer with the defendant's official seal affixed without submitting a document about approval from the director of the regional tax office of ○

B. Determination

Article 5(1) of the Act on Litigation to Which the State is a Party provides that "the head of an administrative agency may designate staff of the administrative agency or staff of the superior administrative agency (in this case, prior approval from the head of the superior administrative agency shall be obtained) and have them perform administrative litigation." As long as the Defendant designates staff of the ○○○ Regional Tax Office, which is a superior administrative agency, as a litigation performer, based on Article 5 of the Rules on Litigation Affairs (National Tax Service Directive No. 2011), etc., the Defendant’s designation of the staff of the superior administrative agency as a litigation performer can be deemed as designating the staff of the superior administrative agency as a litigation performer. As long as Article 58(1) of the Civil Procedure Act provides that the fact that the ○○ Regional Tax Office has obtained the authority to conduct litigation must be attested in writing, the Defendant cannot be deemed to have submitted the document of designation of the litigation performer designated by the head of the regional

Therefore, the designation of the defendant's litigation performer is not illegal.

3. Whether a lawsuit is lawful for the primary claim; and

A. The plaintiff's assertion

The defendant selected the plaintiff who is not a person subject to investigation as a person subject to investigation and conducts an illegal tax investigation, based on this, and issued the disposition in this case before the decision on the request for pre-assessment review is made. Thus, the disposition in this case is unlawful.

Since the Plaintiff did not have accrued interest income while engaging in a transaction of lending money to ○○ from January 2, 2012 to September 24, 2012, and did not recover the principal amount of KRW 81,900,000, the instant disposition made on the ground that the Plaintiff obtained interest income was unlawful.

B. Determination

According to the main text of Article 56(3) of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same), an administrative litigation shall be filed within 90 days from the date the decision on a request for adjudication is notified. Meanwhile, in cases where a previous lawsuit is withdrawn and a new lawsuit is deemed to have been filed by modifying the purport of the claim in exchange for exchange, compliance with the period for filing a lawsuit against a new lawsuit shall, in principle, be determined on the basis of the time the lawsuit is modified (see, e.g., Supreme Court Decision 2011Du27544, Jul. 11, 2013): Provided, That where a lawsuit seeking nullification of the same administrative disposition was filed and the purport of the lawsuit is subsequently changed to an exchange of lawsuit seeking revocation of such disposition, whether the period for filing a lawsuit for revocation of the claim is complied with shall be determined at the time the lawsuit for invalidation is filed (Articles 37, 21(4),

On May 26, 2015, the Plaintiff filed a lawsuit seeking confirmation of invalidity of the instant decision, and subsequently amended the purport of the claim to seek confirmation of invalidity of the instant disposition by filing an application for modification of the purport of the claim as of September 21, 2015. In other words, via an application for modification of the purport of the claim as of May 8, 2017, the Plaintiff sought revocation of the instant disposition and sought preliminary confirmation of invalidity of the instant decision.

The Plaintiff’s primary claim is seeking the revocation of the instant disposition, and the determination as of September 21, 2015, which is the time when the lawsuit seeking confirmation of invalidity of the instant disposition was filed. As long as the Plaintiff received notification of February 23, 2015 by the Tax Tribunal on the instant disposition as to the Plaintiff’s decision on February 23, 2015, it is evident that 90 days have already passed since the date when the decision of the Tax Tribunal was notified at September 21, 2015, the Plaintiff’s primary claim was not in compliance with the period of filing the lawsuit under the main sentence of Article 56(3) of the former Framework Act, and thus, is unlawful.

4. Whether the preliminary claim is lawful;

A. The plaintiff's assertion

Upon receipt of a request for pre-assessment review under Article 81-15 (3) and (5) of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014), the head of a tax office shall make a decision after deliberation by the National Tax Examination Committee, allow the applicant for the review to peruse documents related to the request, provide an opportunity to state his/her opinion. The defendant made the decision in this case without undergoing deliberation by the National Tax Examination Committee and without allowing the plaintiff to peruse documents related to the request or to state his/her opinion, and without giving the plaintiff an opportunity to state his/her opinion. In addition, the decision on the request for pre-assessment review must be made final decision by the taxpayer protection officer, and the defendant obtained the approval of the decision in this case without authority even if the taxpayer protection officer is not the

B. Determination

The term "disposition of an administrative agency, which is the object of an appeal litigation, means, in principle, an act of an administrative agency under public law, which is directly related to the rights and obligations of citizens, such as ordering the establishment of rights or the burden of obligations, or directly giving rise to other legal effects with respect to a specific matter. The issue of whether an administrative agency's act can be the object of an appeal litigation cannot be determined abstractly and generally. In specific cases, an administrative disposition is an act that directly affects the rights and obligations of citizens as an enforcement of law with respect to a specific fact by an administrative agency as the subject of public authority. In mind, the determination should be based on the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties such as the other party, etc., and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court en banc Decision 20

A prior notice of taxation is characterized as a prior notice of a disposition to protect its rights and interests by providing taxpayers with sufficient time with an opportunity to state their opinions in the procedures such as the pre-assessment review by notifying taxpayers of information on the facts investigated by the tax authority in advance. As such, the pre-assessment review system has the nature of a preventive remedy system that reduces the possibility of rendering illegal and unreasonable dispositions and allows taxpayers to reflect their arguments before a taxation disposition (see Supreme Court Decision 2015Du52326, Apr. 15, 2016). As such, the decision in this case does not directly cause a direct change to taxpayers’ rights and obligations, such as a taxation disposition, due to a decision not adopting a request for pre-assessment review, and thus, cannot be deemed as an independent disposition subject to an administrative litigation. Accordingly, the Plaintiff’s preliminary claim seeking confirmation of invalidity of the decision in this case is unlawful.

5. Conclusion

It is so decided as per Disposition by the assent of all participating Justices on the ground that the plaintiff's primary and conjunctive claims are dismissed.