Whether service of a tax notice, etc. is illegal (Judgment of non-trialness)

A disposition and a notice of tax payment imposed by data derived from the business partner’s tax investigation are lawful, and a lawsuit seeking confirmation of invalidity of a disposition of public auction is to be filed with the defendant, so it is unlawful against the director of the tax office who is not eligible for the defendant

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

We examine the grounds of appeal in comparison with the records and the judgment of the court below. Since it is clear that the grounds of appeal by the appellant fall under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal, it is dismissed under Article 5 of the same Act. It is so decided as per Disposition by the assent

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Daegu High Court 2006Nu2238 (No. 22, 2007)

1. The plaintiff's appeal is dismissed.

2. The plaintiff's action to nullify the public auction disposition added in the trial shall be dismissed.

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

The judgment of the first instance court is revoked. The defendant's disposition of imposition of value-added tax of 3,868,400 won on October 11, 1999 against the plaintiff and of 108,810 won on global income for the year 1998 and imposition of value-added tax of 2, 1999, value-added tax of 94,560 won on May 29, 2001, and global income tax of 11,295,150 won for the year 200. The defendant confirms that each disposition of 1,295,150 won on each real estate listed in the separate sheet (hereinafter referred to as "the real estate of this case") is null and void on April 11, 201 (the plaintiff added a lawsuit seeking confirmation of invalidity of the disposition of public auction in the first instance).

1. Details of the disposition;

Each entry, and the purport of the whole pleadings, of Gap evidence Nos. 3 and 6-1, 2, 31-1, 4, 32, 37-1, 2, and Eul evidence Nos. 1 through 16 (including additional numbers), respectively, and the purport of the whole pleadings.

A. Each disposition of this case

(1) On December 196, 1996, the Defendant: (a) made a false purchase tax invoice issued by ○○○ Capital Co., Ltd. (hereinafter “○○ Capital Co., Ltd”); and (b) made a tax investigation on the three-dimensional capital as a suspicion of tax evasion by taking the false purchase tax invoice issued by ○○ Capital Co., Ltd. (hereinafter “○○”).

(2) In the process of the above tax investigation, the Defendant was supplied from the date of the Plaintiff’s tax invoice to the effect that the amount of value-added tax was deducted by using the false tax invoice received from the said ○○○○○○○○○○○○○○○○○○○○○○○○ in 1994; KRW 12,254,114 in January 1, 1995; KRW 23,694,224 in February 1, 1995; KRW 4,950,00 in January 4, 1996; and KRW 45,898,338 in the aggregate, but was supplied by the Plaintiff’s false tax invoice received from the said ○○○○○○○○○○○○○○○○○.

(3) Accordingly, the Defendant: (a) determined that the Plaintiff omitted a report on sales of KRW 45,898,338 in total from February 1994 to January 1, 1996; and (b) on January 18, 1999, the Defendant imposed and notified the Plaintiff of KRW 50,00,00 of the value-added tax for the second term of 1994, KRW 1,225,410 of the value-added tax for the first term of 1995, KRW 2,369,420 of the value-added tax for the second term of 195, KRW 49,420 of the value-added tax for the second term of 195, and KRW 32,680,300 related to the omission of sales for the year 195, imposed the Plaintiff’s global income tax for the year 195, and imposed the Plaintiff’s global income tax for the year 2008.

(4) On the other hand, on November 1, 1998, the Defendant imposed and notified the Plaintiff of the global income tax of KRW 108,810 (the tax amount of KRW 103,630 + the additional dues of KRW 5,180) on the global income tax for interim prepayment in 1998 (hereinafter referred to as the “instant disposition 3”). On December 2, 1999, the Defendant imposed and notified the Plaintiff of KRW 905,930 for the second period of 199 (hereinafter referred to as the “instant disposition 4”).

B. The instant public auction disposition

(1) Until October 11, 1999, the Plaintiff paid all the 3,977,210 won remaining after appropriation of the national tax refund of KRW 1,331,420 among the value-added tax on the instant disposition No. 1 and the total income tax on the instant disposition No. 3, however, the Plaintiff was appropriated for the national tax refund among the global income tax on the instant disposition No. 2, and 10,400,720 and the value-added tax on the instant disposition No. 2 was delinquent.

(2) Accordingly, on March 27, 200, the Defendant issued a seizure disposition (e.g., requisition 46120-2191) with respect to the instant real estate owned by the Plaintiff on the grounds of the delinquency in payment of global income tax on the instant disposition No. 2 and the value-added tax on the instant disposition No. 4, and requested the Korea Asset Management Corporation to sell the said real estate on June 5, 200, and on April 11, 2001, the Defendant issued a public sale disposition to sell the said real estate to the Class ○○○○ (hereinafter “instant public sale disposition”) on the grounds of the instant public sale disposition on May 10 of the same year.

(3) On the other hand, on May 11, 2001, the Defendant appropriated KRW 13,792,830 as allocated in the above public sale procedure for the remaining global income tax of KRW 12,667,950 (this tax + KRW 10,400,720 + surcharge of KRW 2,267,230) and value-added tax of KRW 1,124,880 (this tax + KRW 905,830 + surcharge of KRW 219,050), respectively.

(c) Results of the relevant lawsuit

(1) The lawsuit seeking confirmation of the revocation or invalidity of the First, Second, Disposition of this case

(A) The Plaintiff filed a lawsuit against the Defendant seeking revocation of the first and second dispositions of this case by ○○ District Court 2002Guhap8475, but the same court dismissed the lawsuit on the claim for revocation of the disposition of this case on the ground that the Plaintiff did not go through lawful procedures on June 27, 2003, and dismissed the claim for nullification of the disposition of this case on the ground that there is insufficient evidence to acknowledge that the content of the said written confirmation is false.

(B) In the case of ○○ High Court No. 2003Nu1104, which the plaintiff appealed, the same court dismissed the lawsuit seeking the revocation of the disposition on February 6, 2004 for the same reasons as the judgment of the first instance court. ② The lawsuit seeking the confirmation of invalidity of the disposition on the first disposition on October 11, 1999, where the plaintiff paid in full the above value-added tax, and thus the disposition is null and void, it is directly a remedy for the right to seek a return of unjust enrichment equivalent to the amount of the tax payable as a civil lawsuit, and the filing of seeking the confirmation of invalidity of the disposition on the second disposition on the ground that it cannot be deemed a direct, effective and appropriate method, and thus, it is dismissed for the reason that there is no benefit of lawsuit. ③ The appeal seeking the confirmation of invalidity of the disposition on the second disposition on the ground of this case

(C) The Supreme Court Decision 2004Du3571 Decided May 17, 2004, which appealed by the Plaintiff, rendered a judgment dismissing the appeal.

(2) Lawsuit seeking cancellation of ownership transfer registration

(A) The Plaintiff filed a lawsuit against ○○○○ District Court 2001Kadan4977, which sought cancellation of ownership transfer registration in the name of ○○○○○, which was completed with respect to the instant real estate on the ground that the instant public sale disposition is null and void. However, on July 30, 2003, the said court rendered a judgment dismissing the Plaintiff’s claim on the ground that the instant Defendants 2 and 4, which was the cause of the instant public sale disposition, were not based on a false confirmation, and that the said disposition did not become null and void due to lack of procedural defects in the service of the notice of tax payment

(B) In the case of ○○ High Court 2003Na6881, which was appealed by the Plaintiff, the same court rendered a judgment dismissing the Plaintiff’s appeal on July 2, 2004 on the ground that the instant disposition was not based on a false confirmation, but due to the lack of any defect in the delivery of a tax payment notice. On the other hand, the instant disposition 4 is null and void due to the significant and apparent defect in the service of a tax payment notice, or as long as the instant disposition is null and void or the disposition in arrears based on the instant disposition and its basis is valid, the instant disposition in arrears cannot be deemed null and void. However, the Plaintiff can only receive a refund of KRW 1,124,880 of the value-added tax allocated to the Defendant in the above public sale procedure by the instant disposition in question

(C) In the case of ○○○ Court 2004Da40863, which appealed by the Plaintiff, the same court rendered a judgment dismissing the appeal on October 29, 2004.

(3) Lawsuits to nullify restitution of unjust enrichment and public sale disposition

(A) The Plaintiff filed a lawsuit against the ○○ District Court 2003da81413 on the return of unjust enrichment against the Republic of Korea, and against the Korea Asset Management Corporation to seek confirmation of invalidity of the disposition of public sale, but the same court may seek revocation of the registration of transfer of ownership that has been completed in the future on June 24, 2004 by the public sale on the ground that it cannot be deemed a direct and effective and appropriate method for dispute resolution, and thus, the Plaintiff’s claim to seek confirmation of invalidity of the disposition of public sale on the ground that there is no interest in the lawsuit. Of the claim for restitution of unjust enrichment, the instant disposition of this case, among the claims for restitution of unjust enrichment, has a duty to return value-added tax 1,124,880 for the second period of February 199, which was distributed to the Plaintiff in the above public sale procedure, but the remainder of the Plaintiff’s claim (the claim for restitution of unjust enrichment due to the instant disposition of this case) was lawfully dismissed on the ground that each of the above disposition was duly delivered to the Plaintiff at the Plaintiff.

(B) In the case of ○○ District Court No. 2004Na8669, on which the Plaintiff appealed, the same court rendered a ruling dismissing the Plaintiff’s appeal on October 27, 2004, and the case of ○○ Court No. 2004Da64814, on which the Plaintiff appealed, the same court rendered a judgment dismissing the appeal on January 14, 2005.

D. Ex officio revocation of the Disposition No. 4 of this case

On July 28, 2004, the Defendant rendered a decision to revoke the instant disposition ex officio according to the judgment against the Plaintiff in the lawsuit claiming restitution of unjust enrichment. On August 3, 2004, the Defendant decided to refund KRW 1,124,880 (this tax + KRW 905,830 + Additional dues + KRW 219,050) and KRW 198,310 for additional dues. On August 4, 2004, the Defendant deposited each of the above money with the Plaintiff’s account and completed the refund.

2. Whether each of the dispositions of this case is legitimate

(a) arranging the arguments of the parties;

(1) As to the Defendant’s assertion that each of the dispositions of this case is lawful on the grounds of the above disposition and relevant Acts and subordinate statutes, the Plaintiff asserted that the disposition of this case was based solely on the false confirmation in the name of ○○ Construction, and that the disposition of this case was made based on the false confirmation, and that there was no other evidence of imposition and there was no difference in the Plaintiff’s failure to pay taxes, and thus, each of the above dispositions is null and void, and that the public sale

(2) The disposition of imposition of value-added tax as of October 11, 1999, as of October 11, 199; the disposition of imposition of value-added tax as of December 11, 1994; the value-added tax of 573,00 won (this tax + the additional tax of 73,00 won); the value-added tax of 1,404,280 won (this tax + the additional tax of 1,225,410 won + the additional tax of 178,870 won); the value-added tax of 2,891,120 won [this tax of 1,846,80 won (the first tax of 2,369,420 won); the subsequent tax of 208,300 won and the subsequent additional tax of 1,305 won and the subsequent additional tax of 1,296,300 won and the subsequent additional tax of 1,419.25 won and the subsequent tax of this case];

B. Determination

(1) Claim for nullification of the first and second dispositions of this case (the above part, 1, 3)

(A) In a case where the existence of a right or legal relation disputed in a lawsuit has already been disputed and a final and conclusive judgment thereon has been rendered between the same parties, the parties cannot make any allegations that conflict with this, and the court may not make any judgment that conflict with this, and as such, the existence of a final and conclusive judgment as mentioned above is an ex officio investigation, and the court shall not ex officio investigate and determine it (see Supreme Court Decision 2004Du10227, Oct. 13, 2006).

(B) According to the above facts, in the case of ○○○ High Court No. 2003Nu1104, and ○○○ Court No. 2004Du3571, the final appeal of this case, the plaintiff's lawsuit of nullification of the first disposition of this case was dismissed, and the plaintiff's claim of nullification of the second disposition of this case was finally decided against the plaintiff. Since the plaintiff filed the lawsuit of this case seeking confirmation of invalidity of each disposition of this case where the parties and the subject matter of lawsuit of this case are the same after the judgment of the lawsuit of this case became final and conclusive, the plaintiff cannot make a decision inconsistent with the final and conclusive judgment because the res judicata effect of the final and conclusive judgment was not in

(2) The action to nullify the invalidity of the third disposition of this case (the second part)

According to the above facts, since the plaintiff paid in full all the income tax of the disposition No. 3 of this case until October 11, 1999, even if the above disposition is null and void, it is a direct remedy method to seek return of unjust enrichment equivalent to the amount of tax payable as a civil lawsuit, and it is merely an indirect method to seek confirmation of invalidity as an administrative litigation, and there is no benefit of lawsuit. Accordingly, the plaintiff's lawsuit on this part is unlawful.

(3) The action to nullify the invalidity of the disposition No. 4 of this case (the above part)

(A) If an administrative disposition is revoked, the disposition becomes null and void due to the revocation, and no longer exists. An appeal litigation against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2004Du5317, Sept. 28, 2006).

(B) According to the above facts, on May 11, 2001, the Defendant appropriated the amount of delinquent tax of KRW 1,124,880 (the amount of delinquent tax of KRW 905,830 + the additional dues of KRW 219,050) as the proceeds of public sale, and the Defendant rendered a judgment that the above disposition of imposition becomes null and void on June 24, 2004 in a lawsuit claiming return of unjust enrichment filed by the Plaintiff against the Defendant. As such, the Defendant paid all the amount of delinquent tax, etc. appropriated for the proceeds of public sale after ex officio revocation of the above disposition, and thus, there is no interest in filing a lawsuit seeking confirmation of invalidity of the above disposition. Accordingly, this part of the Plaintiff

(4) Determination of the lawsuit seeking confirmation of invalidity of the public auction disposition

(A) The public sale of the property in arrears by the Korea Asset Management Corporation shall be deemed to be by the delegation of the authority of the director of the tax office for the public sale. Therefore, in filing an appeal suit, such as revocation, etc. of the public sale disposition conducted by the same Corporation, the delegated authority shall be the defendant for the same construction work actually conducted by the public sale. The delegated authority shall not be the defendant (see Supreme Court Decision 96Nu1757, Feb. 28, 1997).

(B) According to the above facts, on March 27, 200, the defendant issued a disposition of seizure on the real estate in this case owned by the defendant on the ground of the plaintiff's default of national taxes, and requested a public sale to the Korea Asset Management Corporation on June 5 of the same year, and on April 11, 2001, the same construction was decided to sell the above real estate to ○○○○, and thus, the plaintiff's lawsuit of invalidation of the public sale against the defendant is unlawful as the defendant's standing is not allowed (On the other hand, when the plaintiff filed a lawsuit seeking revocation of the public sale disposition against the head of the tax office who is not allowed to be the defendant due to the mistake in designating the defendant as to the public sale disposition made by the Korea Asset Management Corporation upon delegation by the head of the tax office, the court shall exercise the right of explanation to correct the defendant as the Korea Asset Management Corporation, but the plaintiff has already been sentenced to a judgment of loss by filing a lawsuit against the Korea Asset Management Corporation seeking nullification of the public sale disposition in this case, and the judgment became final.

3. Conclusion

Therefore, the plaintiff's lawsuit seeking the confirmation of invalidity of the disposition Nos. 3, 4 of this case among the lawsuit of this case is dismissed, and the claim seeking the confirmation of invalidity of the disposition Nos. 1, 2 of this case is dismissed as it is without merit. The judgment of the court of first instance, which dismissed the lawsuit seeking the confirmation of invalidity of the disposition Nos. 1, 2 of this case, but only the plaintiff appealed, is revoked and the judgment dismissing the plaintiff's above claim is not allowed under the principle of prohibition of disadvantageous alteration. Thus, the plaintiff's appeal is dismissed. The lawsuit seeking the confirmation of invalidity of the disposition of public sale added in the trial of this case is unlawful, and thus, it is so decided as per Disposition.