Cho High Court Decision 201Do0916 ( October 24, 2011)

Since it cannot be deemed that there was a justifiable reason to believe that the Plaintiff violated the obligation, the imposition of penalty tax is legitimate.

In light of the fact that, if he paid attention, he could have known that the deduction should be made by deducting the input tax amount on the revised tax invoice, it cannot be deemed that there was a justifiable reason not to mislead the Plaintiff into the violation of the obligation. Therefore, the disposition imposing the penalty tax in this case is lawful.

Article 48 of the Framework Act on National Taxes

2011Gu Joint 31901 Value Added Tax and revocation of Disposition of Imposing Interest in Arrears

United Kingdom A

Head of Seodaemun Tax Office

July 27, 2012

August 24, 2012

1. To dismiss a request for revocation of the imposition of additional dues among the lawsuits in this case

2. The request for cancellation of the imposition of additional tax is dismissed;

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

The Defendant’s imposition of KRW 00 on the Plaintiff and KRW 000 on the first half of 2009, the first half of 2009, the first half of 2009, the first half of 2009, and the first half of 2009, the second half of 200, the additional dues of April 20, 201, and the additional dues of August 5, 201 shall be revoked.

1. Details of the disposition;

A. On May 2, 2004, the Plaintiff concluded a sales contract with BB sports leisure Co., Ltd. (hereinafter referred to as 'non-party company') and the Seodaemun-gu Seoul Metropolitan Government OOOO 000 OO 000 OO 000, and ParkCC, the Plaintiff's spouse, concluded a sales contract with the non-party company to be supplied with the above OO 000 O 00 won on the same day.

B. On May 20, 2004, the Plaintiff and ParkCC reported the number of units subject to each of the instant sales contracts as the location of each business registration; paid some of the down payment, 1, 2, and 3 intermediate payments as the sales price to the company other than the company; received a tax invoice from the company other than the company; and received a substantial amount of input tax by reporting it as the purchase amount of each value-added tax period from the first to the first period of 2004 to the first period of 2006.

C. On July 8, 2009, the Plaintiff and ParkCC issued a written contract rescission notice to the Plaintiff and ParkCC that “The Plaintiff and ParkCC did not pay the remainder after paying only interest-free intermediate payment (the first, second, and third parts) from April 10, 2007, which was the date on which the contract was designated for occupancy, and notified that the contract was terminated as of June 30, 2009, and that it would issue a Masphers tax invoice to report value-added tax, and all tax invoices issued before the contract termination notice are revoked.” The Plaintiff and ParkCC attached a revised tax invoice as of June 30, 2009.

D. Meanwhile, on the other hand, ParkCC died on June 16, 2009. On the end of July 2009, the Plaintiff reported the first value-added tax in 2009 with respect to each workplace of the Plaintiff and the Network ParkCC, and did not deduct the input tax amount on the revised tax invoice from the input tax amount.

E. On August 1, 2010, the Defendant, as a comprehensive successor to the liability to pay the net tax, corrected and notified KRW 000, and KRW 000, and KRW 000,00,000,000,000,000,000 for the first place of business of the net ParkCC. On August 9, 2010, the Plaintiff’s taxpayer, as the Plaintiff’s taxpayer, corrected and notified the Plaintiff’s tax assessment of KRW 00,00,00 for the first place of business of the Plaintiff (hereinafter “each disposition imposing the value-added tax”), and each disposition imposing the additional tax.

F. On April 20, 201, the Plaintiff, the Defendant, and on April 20, 201, paid KRW 000 of the principal tax of the value-added tax for the first time in 2009, KRW 000 of the additional tax for the first time in 2009, and KRW 00 of the additional tax for the first time in 2009, and KRW 000 of the additional tax for the first time in 2009, and KRW 000 of the value-added tax for the first time in 2009 (i.e., KRW 00-0,000), and KRW 00 of the additional tax for the failure to comply with the due date (i.e., each additional tax payment portion for the second time in this case).

G. The Plaintiff filed an objection on October 26, 201 to the imposition of each of the instant additional taxes and additional charges, but received a decision of dismissal from the Defendant on November 26, 2010, and filed an appeal on February 25, 2011, but received a decision of dismissal from the Tax Tribunal on June 24, 201.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 4, and Eul evidence 1 to 9 (including provisional number), and the whole purport of the pleading

2. As to the claim to revoke the imposition of each additional dues of this case

In addition, the Plaintiff’s payment of principal tax and additional dues pursuant to Article 21 of the National Tax Collection Act cannot be deemed as a disposition that is subject to appeal litigation, since the Plaintiff paid the principal tax and additional dues without being notified by the Defendant, and the additional dues calculated in accordance with the legal provisions, are not subject to any disposition. Therefore, the claim for revocation of each disposition of additional dues of this case is unlawful.

3. As to the claim to revoke the imposition of additional tax in this case

A. The plaintiff's assertion

(1) Even if the non-party company indicated its intention to cancel the sales contract as of June 30, 2009, and issued the revised tax settlement statement, and as long as the intermediate payment has not been repaid, the sales contract cannot be deemed to have been cancelled. Therefore, the date of the intermediate payment redemption (in the case of ParkCC, April 20, 201, and December 13, 201, in the case of the plaintiff), or the date of the decision of the Tax Tribunal (as of June 24, 201), should be deemed to be the date of cancellation. Therefore, each of the of the of the of the of the of the instant value-added taxes imposed on the premise that the sales contract was cancelled as of June 30, 2009 is unlawful, and each of the instant taxes imposed on it is unlawful.

(2) Since the Plaintiff’s health issues, the death of ParkCC, loan interest pressure, etc., and the lack of tax knowledge, the input tax amount on the revised tax invoice was not deducted, and there are justifiable grounds for non-performance of obligations.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) As to the first argument

Each disposition of value-added tax in this case is imposed on the basis of the notice of the contract and the revised tax invoice of June 30, 2009 that "the sales contract was cancelled as of June 30, 2009," and that each disposition of value-added tax in this case is imposed on the basis of the period for filing the lawsuit, and it cannot be deemed illegal unless there are grounds for invalidation. ① The cancellation of the contract is effective as the requirement for the declaration of the existence of grounds for cancellation and the declaration of the cancellation, and whether the sales contract was cancelled as of June 30, 209," and that "the defendant issued the disposition of imposition of value-added tax in this case on the basis of the notice and the revised tax invoice of June 30, 2009, and it can only be seen as a ground for invalidation of each disposition of value-added tax in this case, and the above assertion by the plaintiff cannot be viewed as a ground for invalidation of each disposition of value-added tax in this case.

(2) As to the second argument

(A) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional taxes under the tax law are administrative sanctions imposed as prescribed by the individual tax law in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, and such sanctions cannot be imposed in cases where there are justifiable grounds that make it difficult for the taxpayer not to know his/her obligations, or where it is unreasonable for him/her to expect the performance of his/her obligations to do so (see, e.g., Supreme Court Decision 95Nu3596, Feb. 9, 1996). However, additional taxes cannot be imposed regardless of taxpayer’s intentional or negligent acts, and do not constitute justifiable grounds that do not cause a violation of the obligations (see, e.g., Supreme Court Decision 2005Du10545, Apr. 26, 2007).

(나) 돌이켜 이 사건을 보건대，① 원고 본인의 납세의무자로서 정당한 사유 여부;㉮ 국세기본법(2010.1. 1. 법률 제9911호로 개정되기 전의 것， 이하 같다) 제48조 제1항은 "이 법 또는 세법에 따라 가산세를 부과하는 경우 그 부과의 원인이 되는 사 유가 제6조 제1항의 규정에 따른 기한연장 사유에 해당하거나 납세자가 의무를 불이행 한 것에 대하여 정당한 사유가 있는 때에는 해당 가산세를 부과하지 아니한다"고 규정 하면서， 동 시행령(2010.2.18.대통령령 제22038호로 개정되기 전의 것， 이하 같다) 제2조 제1항 제2호는 기한연장 사유의 하나로 "납세자 또는 그 동거가족이 질병으로 위중하거나 사망하여 상중인 때"를 규정하고 있음에 비추어 보면， 박CC 사망 후 상 당기간 경과 후에 이루어진 부가가치세 신고에서 누락한 행위가 정당한 사유에 해당한 다고 보기 어려운 점，㉯ 원고는 부가가치세 신고 전에 소외 회사로부터 계약해제통고 서와 함께 2009. 6. 30.자 수정세금계산서를 송달받았고，계약해제통고서에 "마이너스 세금계산서를 발행하여 부가가치세 신고를 하겠다"는 내용까지 기재되어 있음을 감안 하면， 조금만 주의를 기울였다면 공제받을 매입세액에서 수정세금계산서상 매입세액을 차감하여 신고하여야 한다는 것을 알 수 있었을 것인 점 등을 고려할 때， 원고가 주장 하는 사유들만으로는 본래의 납세의무자로서 의무 위반을 탓할 수 없는 정당한 사유가 있다고 볼 수 없고，② 망 박CC의 납세의무 포괄승계자로서 정당한 사유 여부; ㉮ 국 세기본법 제24조 제1항은 "상속이 개시된 때에 그 상속인은 피상속인에게 부과되거나 그 피상속인이 납부할 국세・가산금과 체납처분비를 상속으로 인하여 얻은 재산을 한도로 하여 납부할 의무를 진다"고 규정하고 있는바， 상속인은 민법에 따라 피상속인의 재산상 권리의무를 포괄적으로 승계하므로 위 규정은 상속으로 인한 포괄승계의 효과를 새롭게 창설하는 취지의 규정이 아니라 상속으로 인하여 포괄승계되는 국세 등 납부의무의 범위를 상속재산을 한도로 제한하는 취지의 규정이라고 봄이 상당한 점(대법 원 1991. 4. 23. 선고 90누7395 판결 참조)，상속인이 수인이 있는 경우 상속인 중에서 피상속인의 국세 등을 납부할 대표자를 정하여 상속개시일부터 30일 이내에 신고하여 야 하는 점(국세기본법 제24조 제2항， 국세기본법 시행령 제12조 제1항)， 가산세 납부 의무가 본세 납부의무자의 일신에 전속하는 것이라고 보기 어려운 점 등에 비추어 보면， 위와 같은 상속인의 납세의무는 피상속인의 납세의무와 통일한 납세의무를 승계하는 것으로서 본래의 납세의무 뿐만 아니라 과세표준과 세액의 신고 등 협력의무 등도 함께 승계하는 것으로 보아야 하므로， 원고가 망 박CC의 신고의무를 제대로 이행하지 아니하였고 의무불이행에 정당한 사유가 없다면 그에 따른 가산세 납부의무도 상속 받은 한도 내에서 부담하여야 하는 점，㉯ 원고가 받은 계약해제통보서에는 망 박CC 에 대한 계약해제 내용도 기재되어 있었고， 망 박CC을 상대로 한 수정세금계산서도 함께 첨부되어 있었던 점，㉰ 원고는 망 박CC의 사업장에 관한 2009년 제1기분 부가가치세를 스스로 신고하였는데，망 박CC과 동일한 내용의 임대사업을 영위하였으므로，망 박CC의 부가가치세 신고대상이 되는 내역도 잘 알고 있었을 것인 점 등을 고려할 때， 원고가 주장하는 사유들만으로는 납세의무의 포괄승계자로서의무 위반을 탓 할 수 없는 정당한 사유가 있다고 볼 수 없다.

(C) Therefore, the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, the claim for revocation of the imposition of additional dues in this case is unlawful, and the claim for revocation of the imposition of additional dues in this case is dismissed as it is without merit, and it is so decided as per Disposition.