Early High Court Decision 2014J 0512 ( October 12, 2014)

The amount equivalent to the reduced tax amount, interest, and additional tax shall also be collected for transport employees after the payment deadline of the tax amount to reduce the taxi.

In light of the requirements for taxation, non-taxation, or tax reduction or exemption, and the interpretation of tax laws is interpreted as a law, barring special circumstances, and even if amended after the deadline for the payment of the amount of taxi reduction, it is subject to the amendment of the legislators' policy decisions, and is consistent with the basic principles of the special tax provisions to recover the amount of reduction from those who failed to meet the initial requirements

The service of documents under Article 8 of the Framework Act on National Taxes to reduce the amount of value-added tax paid by general taxi transport business operators.

2014Guhap32268 Value-Added Tax Detailed and Revocation of Disposition

AAAsi Stock Company

the director of the tax office of Western

May 21, 2015

June 18, 2015

1. Of the instant lawsuit, the part of the Defendant’s claim for revocation of the disposition imposing value-added tax of KRW 25,99,940 (including additional tax) for the Plaintiff on March 18, 2013 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 25,99,940 on March 18, 2010 against the Plaintiff and each imposition of KRW 145,03,690 on April 16, 2011, which was made on April 16, 2013 by the Defendant against the Plaintiff, shall be revoked in entirety.

1. Details of the disposition;

A. In accordance with Article 106-7(1) of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 2011; hereinafter the same), the Plaintiff, a general taxi transport business entity, declared and paid value-added tax on the value-added tax expected for the second half-year period from 2010 to 2011 by reducing 90% of each amount of tax payable as indicated in the following table.

B. On June 8, 2012 and December 28, 2012, 201, the ○○ Metropolitan City Mayor notified the Plaintiff that part of the reduced tax amount was not paid to general taxi drivers as follows.

C. Based on the above notification, the Defendant additionally revised and notified the Plaintiff of the amount of value-added tax of KRW 25,99,940 (including additional tax) on March 18, 2010, pursuant to Article 106-7(3) of the former Restriction of Special Taxation Act, on the ground that the Plaintiff did not pay the amount of value-added tax reduced to general taxi drivers within one month from the end of the due date for the return and payment of value-added tax (hereinafter referred to as “instant imposition first disposition”), and on April 16, 2013, the amount of value-added tax of KRW 145,03,690 (including additional tax);

In 2011, the value-added tax was additionally revised and notified in 72,239,360 won (including additional tax) for the second period of value-added tax (hereinafter referred to as "the second disposition of this case").

D. On December 11, 2012, the Plaintiff filed a request for a pre-assessment review against the instant first disposition on February 6, 2013. However, upon the instant first disposition on imposition, the Plaintiff received a non-adopted decision on February 1, 2013, and on the instant second disposition on March 21, 2013.

E. In addition, the Plaintiff dissatisfied with the instant imposition disposition on June 19, 2013 and the instant imposition disposition on July 1, 2013, and filed an objection with the secondary regional tax office. On September 27, 2013, the National Tax Examination Committee rendered a decision to dismiss the instant imposition disposition on the instant second disposition, except in the trial on the grounds that the period of request expires for the first disposition on September 27, 2013.

F. On December 26, 2013, the Plaintiff filed an appeal with the Tax Tribunal on the first and second dispositions of this case. However, on June 12, 2014, the Tax Tribunal rendered a decision to dismiss the first and second dispositions of this case on the ground that the request period was lapsed, and that the second disposition of this case was dismissed.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, 2-2, Eul evidence 1, Eul evidence 2-1 to 3, 2-1 to 3, 4-1 to 3, 10, 11, and the purport of the whole pleadings

2. Judgment on the main defense of the part concerning the revocation of the first disposition of this case

A. The parties' assertion

1) The defendant's assertion

On March 18, 2013, the Plaintiff received a notice of tax payment of the first disposition of this case and served on March 18, 2013

Inasmuch as an objection was filed on June 19, 2013 after the lapse of 90 days from the 90th day from the 90th day from the 2013th day from the 90th day from the 90th day after having known the fact that a tax disposition was imposed, the application period is unlawful, and as

2) The plaintiff's assertion

Since ○○○, who was not delegated with the authority to receive postal items and other documents, received a tax notice of imposition 1 of this case, the service is not a lawful service, and the Plaintiff was subsequently aware of the fact that the disposition was made, and filed an objection within 90 days from that date, the Defendant’s defense is without merit.

B. Determination

Article 8(1) of the Framework Act on National Taxes provides that documents under the Framework Act on National Taxes or other tax-related Acts shall be served on the domicile, temporary domicile, place of business or office of the person in whose name the documents are to be served (Article 10). Article 10 of the same Act provides that service of documents shall be made by means of delivery, mail or electronic delivery (Article 10). The service of documents by delivery shall be made by means of delivery to a public official belonging to the relevant administrative agency to a person to be served at the place where the documents are to be served (Article 3). If a person to be served does not appear at the place where the documents are to be served, documents may be served to such person as his/her employee or other employee or a person living together (Article 8(4).

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 mail or other documents to another person, the delegated person shall be deemed to have received the relevant documents and lawfully delivered them to the person to receive the documents, and the delegated person shall not be necessarily an employee or a person living together (see Supreme Court Decision 200Du164, Jul. 4, 200).

On the other hand, according to Articles 66(6) and 61(1) of the Framework Act on National Taxes, an objection is a disposition.

A disposition shall be filed within 90 days from the date (when a disposition notice is received, the date of its receipt) the person becomes aware of.

First, we examine whether the delivery of tax notice of this case 1 is lawful.

Comprehensively taking account of the overall purport of evidence Nos. 1, 3-1, 3-2, 1, 12, and 13 of evidence Nos. 1, 3-2, and 13, the Plaintiff had its head office in ○○○○-dong 650-00, but the representative director of the Plaintiff transferred the Plaintiff’s operating taxi and 78-2 to ○○○○ on September 7, 2012. The Plaintiff Company did not receive a tax payment notice, etc. at the place of its head office due to a situation that is not different from the above transfer contract, and the Plaintiff’s representative director received a tax payment notice on February 7, 2013 as “○○○-dong 157-00, ○○○-dong 157-00, which is the place of business of the ○○-dong 14, 2013. However, the Plaintiff did not actually reside at the place of business of the ○-○ enterprise.

As seen above, it cannot be interpreted to the purport that the Plaintiff reported a place to be served, even though the Plaintiff was not residing in the location of the new mining enterprise’s place of business, it does not directly have the Plaintiff himself/herself when the notice of tax payment was served, but rather would have the employee of the ○ enterprise receive the above tax payment notice. Therefore, the Plaintiff implicitly delegated the right to receive the tax payment notice to the employee, etc. at the location of the ○ enterprise’s place of business, and accordingly, the Defendant received the tax payment notice of the first disposition of this case dispatched by the Defendant.

Thus, the notice of tax payment of this case is lawful, and the plaintiff is entitled to pay the above tax.

On March 18, 2013, when the notice was served, the Plaintiff was aware of the first disposition of this case on March 18, 201. As seen earlier, the Plaintiff filed an objection against the first disposition of this case on June 19, 2013, which was the 90-day period for filing an objection from the Plaintiff, which was the 90-day period for filing the objection. Therefore, even if the Plaintiff filed an appeal on December 26, 2013, which was within 90 days from the date of receiving the notice of notice of imposition of the first disposition of this case, the Plaintiff’s appeal on the first disposition of this case shall be deemed unlawful (see, e.g., Supreme Court Decision 2011Du18786, Nov. 24, 2011). Ultimately, the part of the claim for revocation of this case among the lawsuit of this case constitutes unlawful because it did not go through legitimate procedures for imposing a taxation.

3. Whether the second disposition of this case is lawful

A. The plaintiff's assertion

1) Article 106-7(3) of the former Restriction of Special Taxation Act (hereinafter referred to as the “instant legal provisions”) provides that:

In light of the legislative intent, amendment history, etc., the amount of reduction of value-added tax shall not be additionally collected by all the unpaid amount of reduction on the ground that the ordinary taxi drivers were not paid within one month from the last day of the payment deadline for the final return of value-added tax, and if the reduced amount was paid to them within a considerable period of time even after one month, it shall be deemed that the object of collection is excluded from the subject of additional collection. However, the second disposition

In addition, unless the legal provision of this case is interpreted in a manner consistent with the above, the above law shall not be applied.

The regulations are unconstitutional regulations that infringe on the property rights of general taxi transport business operators.

2) Although the Plaintiff paid KRW 3,853,712 out of the amount of value-added tax reduced for the first term portion in 201, and KRW 25,776,693 out of the amount of value-added tax reduced for the second term portion in 2011 to ordinary taxi drivers, the Defendant did not include the said money in the amount of execution, and the said disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the interpretation of the legal provisions of this case

Article 106-7 of the Restriction of Special Taxation Act provides that 90/100 of the payable amount of value-added tax shall be reduced for a general taxi transport business entity under the Passenger Transport Service Act by the taxable period ending on or before December 31, 2011. Paragraph (2) provides that the total amount of reduced tax under paragraph (1) shall be paid in cash to a general taxi transport business entity within one month from the end of the payment deadline for the final return of value-added tax as prescribed by the Minister of Land, Transport and Maritime Affairs. Paragraph (3) provides that the Minister of Land, Transport and Maritime Affairs shall immediately notify the Commissioner of the National Tax Service or the head of the competent district tax office of the relevant general taxi transport business entity of the fact that he/she fails to pay pursuant to paragraph (2) within one month from the end of the payment deadline for the final return and payment of value-added tax, and the notified Commissioner of the National Tax Service or the head of the competent district tax office of the relevant general taxi transport business entity shall provide that the total amount of the reduced tax equivalent to subparagraph 1 shall be collected.

However, under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation with the principle of fair taxation to strictly interpret the provision that is clearly considered as a preferential provision among the requirements for reduction and exemption (see, e.g., Supreme Court Decisions 2002Du9537, Jan. 24, 2003; 2008Du7830, Oct. 23, 2008).

In light of the aforementioned principle of no taxation without law, the legal provisions of this case should be interpreted and applied in accordance with the language and text. Although the legal provisions of this case were amended on December 31, 201, if a general taxi transport business entity paid an amount equivalent to the amount of reduced tax to be paid in cash to a general taxi transport business entity within one month from the end of the payment deadline for the final return of value-added tax, and the Minister of Land, Transport and Maritime Affairs did not pay an amount equivalent to the amount of reduced tax to be paid. However, Article 22 of the Addenda of this case provides that the provision of this case applies from the reduction of the taxable period to which January 1, 2012 belongs. In addition, even if the amount equivalent to the reduced tax amount paid to a general taxi transport business entity after one month from the end of the payment deadline for the final return and payment, it would result in the amendment of the legislator's policy decision, and thus, it would not be consistent with the basic principles of tax reduction after the completion of the tax reduction requirements.

The Seoul High Court Decision 2009Nu32699 Decided July 22, 2010, cited by the Plaintiff for the purpose of interpreting the legal provisions of this case, is that if there is "justifiable cause" in which the amount of value-added tax reduced is not paid within the time limit, the amount of value-added tax reduced shall not be applied to this case. In addition, the grounds for the assertion that in the case of this case, the Plaintiff was difficult to pay within the time limit, and there is no other evidence to acknowledge this differently.

In addition, the legal provision of this case does not provide that a transport business operator will give a transport business operator economic benefits through the reduction of value-added tax, but rather provide that a transport business operator will give a transport business operator a profit within a prescribed period of time, and thus fails to meet the requirements for ex post facto reduction, the amount of the reduced tax shall be recovered. If the amount of the reduced tax is recovered pursuant to the legal provision of this case due to the Plaintiff’s payment to the transport business operator after the prescribed period of time, the amount of the reduced tax would result in property damage equivalent to the reduced tax amount resulting from the Plaintiff’s recovery of the reduced tax amount. Thus, the legal provision of this case cannot be deemed as unconstitutional, which infringes on the Plaintiff’s property right of the transport business operator, such as the Plaintiff.

Therefore, this part of the plaintiff's assertion is without merit.

2) There is a value-added tax reduction amount paid by the Plaintiff for the first and second taxable periods in 2011.

Judgment on the issue

The burden of proof of non-taxation requirements, exemption requirements, deduction requirements, etc. in a lawsuit seeking revocation of taxation is, in principle, against a taxpayer (see, e.g., Supreme Court Decisions 2008Du7830, Oct. 23, 2008; 2007Du4049, Jul. 9, 2009). It is insufficient to recognize that the Plaintiff’s statement of evidence No. 4 submitted by the Plaintiff alone has a more amount of value-added tax reduced during the first and second taxable periods in the year 2011, and there is no other evidence to acknowledge it.

Therefore, this part of the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

(c)

Related Acts and subordinate statutes

▣ 국세기본법

Article 8 (Service of Documents)

(1) Documents prescribed in this Act or other tax-related Acts shall be served on the domicile, temporary domicile, place of business or office (in cases of service by electronic means of information and communications networks (hereinafter referred to as "electronic service"), referring to electronic mail address of the designated person (in cases of storage in national tax information and communications networks, referring to the place accessible by using an identification mark of the designated person; hereinafter the same shall apply) of the designated person (referring to the person designated as a recipient; hereinafter the same shall apply).

Article 10 (Service Method of Documents)

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

(2) When a document related to notification, demand, disposition on default, or order issued by the Government under tax-related Acts is served by mail, such document shall be served by registered mail: Provided, That a tax payment notice for interim prepayment under Article 65 (1) of the Income Tax Act and a tax payment notice to collect tax pursuant to Article 48 (3) of the Value-Added Tax Act that falls short of the amount prescribed by Presidential Decree may

(3) Documents by delivery shall be served by a public official of the relevant administrative agency on a person to be served with documents at the place for service: Provided, That if a person to be served with documents refuses to do so, documents may be served at another place.

(4) In cases falling under paragraphs (2) and (3), if a person to be served with a document does not appear at the place where such document is to be served, it may be served to his/her employee, worker or cohabitant; if the person to be served with the document, or 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.

Article 61 (Period of Request)

(1) A request for evaluation shall be filed within 90 days from the date on which the relevant disposition is known (when a disposition notice is received, the date of its receipt).

(2) A request for examination after passing an objection shall be filed within 90 days after decision on the objection is notified: Provided, That where decision is not notified within the period for decision prescribed in the latter part of Article 66 (6), the request for examination may be filed after the period for decision expires even before the decision is notified.

Article 68 (Period of Request)

(1) Any request for adjudgment shall be filed within 90 days after the relevant disposition is known (when a notice of disposition is received, the date of its receipt).

(2) Article 61 (2) shall apply mutatis mutandis to the period for request in cases of an appeal after filing an objection.

▣ 구 조세특례제한법

Article 106-7 (Reduction of Value-Added Tax Amount for General Taxi Drivers)

(1) 90/100 of the amount of value-added tax payable shall be reduced for a general taxi transport business entity under the Passenger Transport Service Act (hereafter in this Article, referred to as "general taxi transport business entity") up to the taxable period ending on or before December 31, 2011.

(2) A general taxi transport business entity shall pay the full amount of the reduced tax under paragraph (1) to a general taxi transport business entity under the Passenger Transport Service Act (hereafter referred to as "general taxi transport business entity" in this Article) within one month from the end of the payment deadline for the final return of value-added tax, as prescribed by the Minister of Land, Transport and Maritime Affairs. In such cases, the general taxi transport business entity shall notify the general

(3) Where the Minister of Land, Transport and Maritime Affairs confirms that a general taxi transport business entity has failed to pay the amount reduced pursuant to paragraph (2) within one month from the end of the payment deadline for the final return of value-added tax that has been reduced pursuant to paragraph (1), he/she shall immediately notify the Commissioner of the National Tax Service or the head of the competent tax office having jurisdiction over the general

1. The amount equivalent to the amount of reduced tax not paid to general taxi drivers;

2. Amount equivalent to the interest on the amount equivalent to the reduced tax amount calculated by the following formula:

The amount equivalent to the interest = The amount equivalent to the abated tax amount under subparagraph 1 ¡¿ Period from the day following the end of a deadline for filing a return and payment of value-added tax reduced pursuant to paragraph (1) to the date of notifying the amount of additional tax ¡¿

3. The additional tax amount equivalent to 20/100 of the amount equivalent to the abated tax amount under subparagraph 1.

▣ 구 조세특례제한법(2014. 1. 1. 법률 제12173호로 개정되기 전의 것))

Article 106-7 (Reduction of Value-Added Tax Amount for General Taxi Drivers)

(1) 90/100 of the amount of value-added tax payable shall be reduced for a general taxi transport business entity under the Passenger Transport Service Act and Enforcement Decree of the same Act (hereafter referred to as "general taxi transport business entity" in this Article) by the taxable period ending on or before December 31, 2013.

(2) A general taxi transport business entity shall pay the full amount of the reduced tax under paragraph (1) to a general taxi transport business entity under the Passenger Transport Service Act (hereafter referred to as "general taxi transport business entity" in this Article) within one month from the end of the payment deadline for the final return of value-added tax, as prescribed by the Minister of Land, Transport and Maritime Affairs. In such cases, the general taxi transport business entity shall notify the general

(3) Where the Minister of Land, Transport and Maritime Affairs confirms that a general taxi transport business entity has failed to pay the amount reduced pursuant to paragraph (2) within one month from the end of the payment deadline for the final return of value-added tax that has been reduced pursuant to paragraph (1), he/she shall immediately notify the Commissioner of the National Tax Service or the head of the competent tax office having jurisdiction over the general taxi transport business entity of such fact (hereafter in this paragraph

1. Where a general taxi transportation business entity pays the amount of reduced tax not paid pursuant to paragraph (2) (hereafter referred to as "amount of reduced tax" in this paragraph) by the date of notification of non-payment (excluding where the reduced tax is paid after the end of the taxable period in which the final return and payment deadline of value-added tax is included): The aggregate of

(a) Amount equivalent to the interest of the amount equivalent to the reduced tax calculated by the following formula:

Amount equivalent to the interest = Amount equivalent to the reduced amount of tax ¡¿ Period from the day following the expiration date of a deadline for reporting and paying value-added tax reduced under paragraph (1) to the payment date ¡¿ 3

(b) The additional tax amount equivalent to 20/100 of the amount equivalent to the abated tax amount;

2. Where a general taxi transport business entity fails to pay the abated tax by the date on which the notice of payment is given: The aggregate of the following amounts:

(a) The amount equivalent to the reduced tax amount;

(b) Amount equivalent to the interest calculated by the following formula:

The amount equivalent to the interest = The amount equivalent to the reduced amount of tax ¡¿ Period from the day immediately following the end of the deadline for filing a return and payment of value-added tax reduced pursuant to paragraph (1 to the notice of the

(c) The additional tax amount equivalent to 40/100 of the amount equivalent to the abated tax amount;

Addenda

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2012.

The amended provisions of Article 22 (Application to Reduction of Value-Added Tax Amount of Ordinary Tax by General Taxi Operators) Article 106-7 shall apply from the reduced portion of the taxable period in which January 1, 2012 belongs.