Fraudulent Gains;

Whether the implementation pursuant to the instant notice disposition is void as a matter of course

The contents of the judgment are the same as attachment.

2017 Ba62986 Bada

Gu*

Korea

on October 14, 2018

on October 02, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 165,298,910 won with 5% interest per annum from September 17, 2007 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

1. Basic facts

A. From 2002 to 2007, the Plaintiff newly built a commercial building at Silsi. The Plaintiff reported value-added tax amounting to KRW 18,125,00,000 in total, including the construction cost of KRW 8,440,00 in 202, KRW 9,567,000 in 203, and KRW 118,000 in 204.

B. From March 20, 2007 to June 30, 2007, the head of Ansan District Tax Office conducted a tax investigation with respect to the said new construction project, and confirmed that the construction cost of KRW 1,836,00,000, out of the above construction cost reported by the Plaintiff, was processed, and confirmed that the construction cost of KRW 360,000,00, which was not proved or reflected in the account book, was 16,649,00,000 (=18,125,000,000 - 1,836,000,0000 + 360,000,000).

(c) the Director of the Ansan District Office will refer to criminal investigations on the inclusion of the processed materials as above;

On August 21, 2007, the plaintiff notified the plaintiff on August 22, 2007, and conducted a criminal investigation from August 22, 2007 to August 31, 2007, and on September 3, 2007, the provisional park amounting to KRW 1,669,917,730 for the plaintiff on September 3, 2007 shall be included in the crime, applying Article 9 (1) 3 of the Punishment of Tax Evaders Act, and the fine shall be imposed by applying Article 9 (1) 3, etc. of the Punishment of Tax Evaders Act, taking into account that the plaintiff paid after the revised return, notified the plaintiff to pay KRW 165,298,910 for the amount of 50/100 of the amount of the decision (hereinafter referred to as the "disposition disposition"), and the plaintiff paid the above amount on September 17, 2007.

D. Meanwhile, on August 24, 2007, the Plaintiff filed a revised return on the amount of tax invoice received on August 24, 2007.

Value-added tax paid KRW 9,918,380 as value-added tax, KRW 190,471,740 as value-added tax for the second term of 2002, and KRW 290,934,210 as global income for the year 2002.

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 6 (including virtual numbers), the whole pleadings

purport of this chapter

2. Judgment on the main defense of this case

The defendant asserts that the legality of the disposition of notification in accordance with the Procedure for the Punishment of Tax Evaders Act is ultimately determined by the criminal procedure, and that the validity of the disposition cannot be asserted as a preliminary question in civil procedure. However, if the provisional payment was appropriated for a fine or a surcharge without legitimate disposition of notification, it constitutes unjust enrichment (see, e.g., Supreme Court Decision 27, Jul. 27, 1971). Thus, the above argument cannot be accepted.

3. Judgment on the merits

A. The plaintiff's assertion

According to the former Regulations on the Determination of Penalty Amount (amended by the National Tax Service Directive No. 1638, Mar. 1, 2007; hereinafter the same) which is the National Tax Service’s directives, the pertinent disposition of this case was issued to the Plaintiff due to the mistake of the official in charge of the tax affairs, even though the above provision is an internal business rule of the administrative agency, but the tax imposition disposition has been consistently made for a long time. Thus, the above provision of the Determination has a legal nature that has external effect. However, the pertinent disposition of this case was imposed in cases where it is impossible to take the disposition of notification in accordance with the above provision of the Determination of Punishment Act, even though it is limited to cases where the disposition of notification cannot be taken in accordance with the above provision of the Determination.

is effective.

In addition, the head of the Ansan District Tax Office stated that the provisional park of KRW 1,669,917,730 in the offense column is included in the disposition of a fine against the plaintiff. This alone cannot be deemed to have specified the plaintiff's offense. Thus, the disposition of this case is null and void.

Finally, the notice of this case is null and void because the plaintiff did not engage in "Fraud and other unlawful acts" under Article 9 (1) 3 of the Punishment of Tax Evaders Act, and it was made even if the plaintiff did not have any intention to evade tax.

Therefore, the amount equivalent to the fine that the Defendant received should be returned to the Plaintiff as unjust enrichment without any legal ground.

B. Determination

(1) Determination as to the allegation of invalidation due to a violation of the provisions on determination of an amount equivalent to the previous penalty

Article 7 of the former Regulation on the Punishment for Tax Evaders provides that the amount equivalent to the fine shall be reduced by 50/100 of the prescribed amount if a revised report is filed within the time limit for the revised report under the Framework Act on National Taxes: Provided, That if a revised report is filed after the investigation into a tax offense commenced by the state agency, the amount equivalent to 50/100 of the prescribed amount shall be reduced. The head of the Ansan Tax Office notified the plaintiff of the investigation on the crime on August 21, 2007 and conducted the investigation on the crime from August 22, 2007 to August 31, 2007, and the fact that the plaintiff filed the revised report on August 24, 2007.

Since a revised return was filed after the commencement of an investigation, it is legitimate for the head of Ansan Tax Office to reduce the amount equivalent to 50/100 of the amount determined pursuant to the proviso to Article 7(1) of the above Rules, and to take the instant disposition.

Therefore, this part of the plaintiff's assertion on the premise that the main sentence of Article 7 (1) of the above provision is applied to the disposition of this case is without merit.

(2) Determination on the assertion of invalidation due to unspecified facts of a crime

According to Article 9(1) of the former Procedure for the Punishment of Tax Evaders Act (amended by Act No. 9920, Jan. 1, 2010), when the head of a tax office investigates an offense and acquires suspicion of a crime, he/she shall notify the payment of an amount equivalent to a fine, specifying the reasons therefor. According to Article 5 of the former Enforcement Decree of the Procedure for the Punishment of Tax Evaders Act (wholly amended by Presidential Decree No. 22044, Feb. 18, 2010), a tax official shall prepare and serve a document in accordance with the Criminal Procedure Act.

This is a system in which an administrative agency notifies a person in violation of laws and regulations of monetary sanctions in lieu of an excessive punishment system imposed on a person in violation of punishment or a property punishment and has implemented it (see Constitutional Court Order 96Hun-Ba4, May 28, 1998). In the form of administrative sanctions or substance by a tax administrative agency, it notifies the offender subject to fines, minor fines, and confiscation of appropriate monetary sanctions. When the offender complies with the notification contents, it shall not be implemented as a regular punishment procedure, and if the offender complies with the notification contents, it shall not be carried out as a regular punishment procedure, and it has the nature of sanctions in substance in that the offender is not subject to investigation or punishment again for the same case, and therefore, it is necessary to specify the summary of the facts of the offense, applicable provisions, amount of penalties, etc. in accordance with Articles 254 and 323 of the Criminal Procedure Act.

With respect to the instant case, the head of the Ansan District Tax Office and the head of the Ansan District Tax Office stated that the provisional park of KRW 1,69,917,730 for the year 2002 is a crime; the instant disposition was made by applying Article 9(1)3, etc. of the Punishment of Tax Evaders Act; the Plaintiff voluntarily filed a revised return and paid value-added tax after the commencement of the tax investigation; and the fine was paid after receiving the instant disposition, as seen earlier. Accordingly, the instant disposition states the summary of the offense, applicable provisions, penalty amount, etc., and it is difficult to view that it was impeding the Plaintiff’s exercise of right to defense, and thus, the above assertion is not accepted.

(3) Determination on the invalidity of the requirements under the Punishment of Tax Evaders Act

The disposition of notification is a requirement for entry into force of the other party's voluntary uniform, and it does not in itself force the implementation of the notification or form any duty of rights to the other party, and is finally determined on the facts subject to the notification disposition in criminal proceedings by filing a complaint with respect to the notification disposition (Article 55 (1) 1 of the Framework Act on National Taxes shall not be disobeyed pursuant to Article 55 (1) of the Punishment of Tax Evaders Act; hereinafter the same shall not apply). In addition, even if the plaintiff voluntarily paid the fine in accordance with the requirement as alleged by the plaintiff, it cannot be accepted to dispute the non-performance of the requirement under Article 9 (1) 3 of the Punishment of Tax Evaders Act in civil proceedings with the seal and the disposition of notification in spite of the non-performance of the requirement as alleged by the plaintiff, the fact that the plaintiff calculated the construction cost among necessary expenses, and the fact that the plaintiff voluntarily filed the report of notification, even if the plaintiff acquired "in the course of investigation of an offense," the head of a tax office should not consider any defect as alleged by the plaintiff in the disposition of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.