Cho Jae-2016-China-4251 (No. 09, 2017)

Whether a notice of tax payment is lawful and whether a decision of estimation of global income tax is void automatically.

It is insufficient to recognize that advance notice of taxation and notice of tax payment of each of the dispositions of this case were not served on the Plaintiff. The disposition of this case, calculated the amount of income by applying standard expense rate to a person who filed no global income tax return by applying standard expense rate, etc., cannot be deemed as being objectively null and void, since such defect cannot be deemed as objectively apparent, even if there is no income due to the actual expense

Article 8 of the Framework Act on National Taxes

Incheon District Court 2017Guhap51345 Global Income and Revocation of Disposition

JO

OO Head of the tax office

oly 2018.14

2018.12

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. The plaintiff's primary claim is dismissed.

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

Cheong-gu Office

In the meantime, on March 1, 2014, the Defendant imposed global income tax (including additional tax) of KRW 151,214,280 on the Plaintiff on March 1, 201, and imposed global income tax of KRW 10,461,820 on the Plaintiff on May 21, 2014 and imposed global income tax of KRW 10,461,820 on the Plaintiff on May 21, 2014 are invalid.

Preliminary, each of the above dispositions shall be revoked.

1. Details of the disposition;

On March 1, 2014, the Defendant determined and notified the global income tax (including additional tax) of KRW 151,214,280 for the Plaintiff on March 1, 201, and on May 21, 2014, the global income tax (hereinafter referred to as “instant one disposition”) of KRW 10,461,820 for the Plaintiff on May 21, 201, by determining the global income tax (including additional tax) of KRW 10,461,820 for the global income tax (including additional tax) for the year 2012, as the method of calculating the amount of income for which the Plaintiff did not file a final tax return on global income tax for the year 201 and 2012 (hereinafter referred to as “instant two disposition”).

【Reasons for Recognition】 Entry of Evidence Nos. 1 and 2, the purport of the whole pleadings

2. Judgment as to the main claim (whether each disposition of this case is null and void)

A. The plaintiff's assertion

In relation to each of the dispositions of this case, the Defendant did not provide the Plaintiff with a prior notice of taxation and a notice of tax payment under the Framework Act on National Taxes. Moreover, the Defendant, while determining the global income tax base of the instant disposition 1, did not fully consider such circumstances, even though it is apparent that the Plaintiff’s expenses, such as wages and management expenses, etc. incurred in operating the OO hospital much more than the amount of revenue, and there was no income amount. Accordingly, each of the dispositions

(b) Related statutes;

Basic Act

Article 8 (Service of Documents)

(1) In cases of service by means of information and communications networks (hereinafter referred to as "electronic service"), the address, domicile, place of business or office (referring to the person designated as a receiver; hereinafter the same shall apply) of the designated person (referring to the document; hereinafter the same shall apply), electronic mail address of the designated person

In cases of storage in the telecommunications network, access may be made using the user identification mark of the holder of the title deed.

service shall be made at the address or place of business (referring to the address or place of business).

Article 10 (Service Method of Documents)

(1) Documents under Article 8 shall be served by means of delivery, mail or electronic delivery.

(2) When any document relating to notification, demand, disposition for arrears or an order issued by the Government under tax-related Acts is served by mail, such document shall be served by registered mail: Provided, That Article 65 of the Income Tax Act shall apply

A tax notice for interim prepayment referred to in paragraph (1) and Article 48 (3) of the Value-Added Tax Act shall apply.

(d) A tax payment notice for collection in an amount less than that prescribed by Presidential Decree;

A tax notice may be served by ordinary mail.

(3) Documents by delivery shall be served by a public official of the relevant administrative agency to a person who is to receive documents at the place for service: Provided, That documents shall be served by delivery.

Delivery may be made at another place, unless the recipient refuses to receive the service.

(4) In cases falling under paragraphs (2) and (3), if a person to receive documents is not present at the place where such documents are to be served, judgement shall be made as his/her employee, worker or cohabitant.

A document may be served on a person entitled to receive the document and, if a person entitled to make a reasonable judgement as his/her employee, worker, or cohabitant refuses to receive the document without justifiable grounds, the document may be placed at the place where the document is to be served.

(5) Where a person to be served with documents under paragraphs (1) through (4) relocates his/her address or place of business, such documents shall be confirmed by resident registration cards, etc. and served at the relocated place.

(6) When documents are delivered, the recipient shall sign or affix a seal on the service slip. In such cases, if the recipient refuses to sign or affix a seal, such fact shall be recorded on the service slip.

Article 12 (Effectuation of Service)

(1) Documents to be served under Article 8 shall take effect from the time they reach a person to receive them: Provided, That in cases of electronic service, they shall be entered into an electronic mail address designated by such person.

When (in cases of storage in national tax information and communications networks, when stored) the person to receive the service is deemed to reach the document.

C. Determination

1) The argument that advance notice of taxation and notice of tax payment have not been served

In an administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the invalidity confirmation thereof, the Plaintiff is liable to prove that the administrative disposition is null and void. Therefore, the burden of proving that the Plaintiff was unable to receive a notice of prior notice of taxation or a notice of tax payment in a lawsuit seeking the invalidity confirmation on the ground that the notice of prior notice of taxation or a notice of tax payment was not served (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010).

In light of the following circumstances, which are acknowledged as comprehensively considering the purport of the entire pleadings in the statement Nos. 1 through 6 of this case, it is insufficient to acknowledge that the statement of Evidence Nos. 11 through 13 is not sufficient to acknowledge that the notice of notice of taxation or the notice of tax payment of this case was not served on the Plaintiff, and there is no other evidence to acknowledge otherwise

① From June 13, 2013 to July 31, 2014, the Plaintiff had a householder’s living together with an OO as a householder’s head.

② On November 4, 2013, the Defendant sent the notice of pre-assessment of the instant disposition to the Plaintiff’s domicile on April 25, 2014, and the notice of pre-assessment of the instant disposition 2 to the Plaintiff’s domicile. On May 20, 2014, the Plaintiff submitted to the Defendant an application for pre-assessment review of the instant disposition 2, as the Plaintiff did not request the pre-assessment review on the instant disposition 2, and submitted an application for early decision.

③ On March 14, 2014, the Defendant sent a notice of tax payment of the instant disposition 1 to the Plaintiff’s domicile, and the said notice was sent by registered mail with the Plaintiff himself/herself as the recipient at the Plaintiff’s domicile. The Defendant sent a notice of tax payment of the instant disposition 2 to the Plaintiff’s domicile. On May 28, 2014, the notice of tax payment was sent to the Plaintiff’s domicile by designating POO, a person living together with the Plaintiff as the substitute recipient, as the registered beneficiary (the Plaintiff asserted that PO was not capable of distinguishing PO from alcohol addiction at the time, but there was no evidence to acknowledge it).

2) The Plaintiff alleged that there was no income amount in 2011

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 its defect is an objectively obvious violation of laws and regulations, and it is necessary to reasonably consider the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the taxation disposition, as well as to reasonably consider the specificity of the specific case itself, in order to determine whether the defect is significant and obvious. In a case where there are objective circumstances that make it possible to believe that certain legal relations or factual relations which are not subject to taxation are subject to taxation, which are not subject to taxation, are likely to be subject to taxation, and it cannot be said that it is apparent from appearance even if the defect is serious, and thus, it cannot be said that the taxation disposition that misleads the fact of taxation is null and void as a matter of course (see, e.g., Supreme Court Decision 96Nu12634, Jun. 26, 199).

In light of the following circumstances, which are acknowledged as comprehensively considering the purport of the entire pleadings in Eul evidence Nos. 7 through 12, namely, the defendant calculated the plaintiff's revenue reverted to year 201 based on the data on the amount of revenue on the certificate of business of the tax-free shop operated by the plaintiff, sales of credit cards, sales of business income, business income on the statement of payment of business income, and earned income, etc. received from the OO medical life cooperative, and calculated expenses based on the data such as tax invoice related to the OO hospital, and calculated the plaintiff's income reverted to year 201 by applying standard expense rate, etc., even if there were defects as alleged by the plaintiff in the Disposition No. 1 of this case, such defects cannot be deemed objectively apparent.

3) Whether each of the dispositions in this case is invalid

Each of the dispositions of this case cannot be deemed null and void, since it is difficult to view that there exists grounds for invalidation as asserted by the plaintiff.

3. Whether the preliminary claim is legitimate;

An appeal seeking a cancellation of disposition under the Framework Act on National Taxes or other tax-related Acts shall be filed, in writing, through a request for examination or adjudgment, and where such request for examination or adjudgment, which is a procedure of the previous trial, is unlawful as it is without going through a prior trial

As the notice of tax payment of the instant disposition 1 on March 14, 2014 and the notice of tax payment of the instant disposition 2 delivered to the Plaintiff on May 28, 2014, the Plaintiff was aware of the existence of each of the instant dispositions at issue at the time of service of the notice of tax payment. However, the Plaintiff filed a petition for the revocation of each of the instant dispositions with the Tax Tribunal on November 11, 2016, after the lapse of 90 days from that time, for which the Plaintiff filed a petition for adjudication after the lapse of the period for filing a petition for adjudication (the Tax Tribunal dismissed the petition for adjudication on the grounds that the period for filing a petition has expired on January 9, 2017). Accordingly, the Plaintiff’s conjunctive claim seeking the revocation of each of the instant dispositions is unlawful since the Plaintiff’s preliminary claim for revocation of each of the instant dispositions

4. Conclusion

The plaintiff's conjunctive claim is dismissed, and the main claim is dismissed. It is so ordered as per Disposition.

shall be ruled.