Daegu District Court-2014-Gu Partnership-21990 ( April 14, 2017)

If tax assessment is conducted based on the data received as a result of the tax investigation, it is subject to prior notice of taxation.

(1) In dealing with the taxation data, it is not necessary to investigate the person liable for tax payment and to impose taxation, and when processing the derived taxation data according to the results of the tax investigation, the notice of taxation should be given, and if the notice of prior notice of taxation is not given, there is a material procedural defect and thus the taxation disposition is null and void.

Article 81-15 of the Framework Act on National Taxes

2017Nu5424 Revocation of Disposition of Imposing global income tax, etc.

Man 00

○ Head of tax office

April 14, 2017

October 27, 2017

November 24, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

In the first place, the Defendant confirms that the imposition of global income tax of KRW 475,371 (including additional tax) and KRW 164,720 (including additional tax) for the year 2009, as notified on April 13, 2012, on which July 2015, the global income tax of KRW 164,720 (including additional tax) for the year 2010, respectively, is null and void. In the second place, the Defendant’s imposition of global income tax of KRW 475,371 (including additional tax) for the year 2009, as notified on April 13, 2012, and the imposition of global income tax of KRW 164,720 (including additional tax) for the year 2010, as notified on July 20, 2015, is revoked.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of the court on this case is the same as that of the judgment of the court of first instance, and thus, it is acceptable to accept this in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the

2. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judgment of the first instance;

1. Details of the disposition;

A. Plaintiff’s submission of donation receipt and income deduction

When the Plaintiff makes a year-end settlement of tax amount for wage and salary income for each taxable period in 2009 and 2010, the Plaintiff submitted a donation receipt issued by the Korea-U.S. ○○○○○○○, each of which the Plaintiff was to contribute KRW 1,500,000 for the year 209 and KRW 1,900 for the year 2010, and received income deduction.

(b) Tax investigation on ○○○ company;

1) On November 25, 1993, ○○○ had been registered as a designated religious organization for donations with the Defendant’s approval on November 25, 1993, and registered on April 27, 2004 as the Korean Buddhist Buddhist Buddhist Buddhist Temple.

2) The Defendant conducted a sample investigation with respect to ○○○○, from September 28, 201 to October 5, 2011, and from October 31, 201 to November 4, 2011, in order to verify the authenticity of the receipt, etc. of donations issued by ○○○ from September 28, 201 to October 4, 201, and converted it into a general tax investigation from November 21, 201 to a general tax investigation on November 24, 201 (hereinafter “instant investigation”).

3) In full view of the following facts: (a) the Defendant issued a false receipt of donations in the amount of KRW 1,171,067,000 out of KRW 1,295,085,00 of the donation receipt amount issued by ○○○ in the year 2009; and (b) KRW 1,368,814,00 of the donation receipt amount issued by ○○○ in the year 2010; and (c) KRW 1,521,919,000 of the donation receipt amount issued by ○○ in the year 2010; and (b) the Defendant issued a false receipt of donations without actually receiving the donation. In relation to the donation receipt issued by ○○○○ in the pertinent period, the Defendant recognized that the Plaintiff’s actual amount of donations in the Plaintiff’s account was KRW 200,000 in 20,000 and KRW 350,000 in 20.

C. Taxation against the Plaintiff

1) ■■■세무서장은 2011. 11.경 피고로부터 이 사건 조사 결과를 통보받고, 원고의 근로소득세액에 대한 원천징수의무자인 ○○은행 ○○○지점장에게 관련 연말정산 신고내용을 수정하라는 안내를 하였으나, 이에 응하지 않자 피고에게 이를 통보하였다.

2) On April 13, 2012, the Defendant imposed respectively the global income tax of KRW 475,371 (including additional taxes) on the Plaintiff, pursuant to Article 80(2)3 of the former Income Tax Act (amended by Act No. 11611, Jan. 1, 2013; hereinafter the same), and the global income tax of KRW 475,371 (including additional taxes) on the global income of KRW 2009, and global income tax of KRW 164,720 (including additional taxes) on the global income of KRW 2010.

(d) Procedures of the previous trial; and

On May 29, 2012, the Plaintiff dissatisfied with the request of the Chairman of the Board of Audit and Inspection to revoke the said disposition, but was dismissed on May 15, 2014.

E. The defendant's re-disposition and specification of the disposition of this case

1) On July 20, 2015, the Defendant, on April 13, 2012, did not distinguish the type of additional tax at the time from the Plaintiff on the imposition of global income tax of KRW 164,720 for the year 2010, and revoked ex officio the said imposition on the ground that the grounds for calculation did not specify the grounds for calculation, and then divide the additional tax into the unjustly underreported penalty tax, the amount subject thereto, the tax rate, and the amount thereof, and again imposed the global income tax of KRW 164,720 for the year 2010.

2) In addition, on March 17, 2017, the Defendant confirmed that the imposition of KRW 475,371 on the global income tax for the year 2009, as of April 13, 2012, the Plaintiff did not reflect the portion that was not deducted as at the time of the imposition of KRW 475,371, which was the global income tax for the year 2009, and calculated again,

"The imposition of global income tax for the year 209 dated April 13, 2012 and the imposition of global income tax for the year 2010 dated July 20, 2015, which was corrected by reduction of KRW 292,197 (hereinafter referred to as "each disposition of this case")."; (f) criminal judgment.

On the other hand, on November 30, 201, the Defendant lodged an accusation against the ○○○○○ Office in violation of the Punishment of Tax Evaders Act. Although the ○○○ Office did not receive donations including the donations on each of the instant donation receipts, the Defendant was charged on August 31, 201 on the charge of evading taxes by issuing a false donation receipt as if he received donations, and on January 20, 2017, the Daegu District Court 2012 order.

It was sentenced to a three-year imprisonment with labor by 5030. This case was pending in the appellate court (Tgu District Court 2017No589) on the ground that ○○○ appealed appealed.

Facts without any dispute, Gap's 1 through 11, 27 through 32, 37 through 43, and Eul's 1 through 15, and the purport of the whole pleadings.

2. Rejection portion

As a result, when a reduction or correction disposition is made, the effect of partially cancelling the amount of tax arises, a lawsuit seeking revocation of the amount of tax already cancelled by the above correction disposition is against an administrative disposition for which no lawsuit exists, and is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 95Nu8904 delivered on November 15, 196).

In light of the above circumstances, the imposition of global income tax of KRW 475,371 on April 13, 2012, as of March 17, 2017, was reduced to KRW 292,197 upon the reduction or correction made on March 17, 2017. Thus, the imposition of KRW 475,371 on the part exceeding KRW 292,197, among the imposition of global income tax of KRW 475,371 on April 13, 2012, among the instant lawsuit, is unlawful as it is subject to an administrative disposition for which no part of claim is nonexistent.

3. Determination as to the invalidity of each of the dispositions in this case

A. The plaintiff's assertion

The Plaintiff asserts that the following defects exist in each of the dispositions of this case, and that the degree of such defects is serious and clear, and sought confirmation of invalidity of each of the dispositions of this case, and sought revocation of each of the dispositions of this case as preliminary.

(i) procedural defects;

A) Defects that did not conduct a tax investigation on the plaintiff

According to Article 80 (2) 3 of the former Income Tax Act and Article 142 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24441, Mar. 23, 2013; hereinafter the same), in order to correct the tax base of global income tax, the tax base of global income tax shall be based on the final return of tax base and the documents attached thereto, or on-site investigation, and the defendant did not conduct a tax investigation with respect to the plaintiff since he/she did not conduct the tax investigation with respect to the ○○○○ company. Thus, each disposition of this case

Accordingly, the Defendant violated Article 80(2) of the former Income Tax Act and Article 142(1) of the former Enforcement Decree of the Income Tax Act, and violated the taxpayer’s rights that the Plaintiff could claim under the Framework Act on National Taxes because it did not conduct a tax investigation on the Plaintiff.

B) Defects related to advance notice of tax payment

After the investigation of this case regarding ○○○○, the Defendant, pursuant to Article 81-15(1)2 of the Framework Act on National Taxes and the former part of Article 63-14(2)2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24366, Feb. 15, 2013; hereinafter the same), shall notify the Plaintiff of the notice of taxation pursuant to Article 81-15(1)2 of the Framework Act on National Taxes and Article 63-14(2)2

C) Defects related to tax payment notices

The notice of each disposition of this case does not contain a distinction between the principal tax and the penalty tax, and does not contain a statement on what kind of penalty tax is imposed by the basis of any calculation, and the Acts and subordinate statutes that are the basis of each disposition of this case were not explicitly stated.

D) Defects related to the instant investigation conducted with respect to ○○○

There is a defect in violation of due process in relation to the selection of the subject matter of investigation, the method of investigation, and the investigated public officials.

2) Contents defects

When the Plaintiff files an application for income deduction with each of the donation receipts of this case, the Plaintiff submitted each of the donation receipts of this case to the ○○○○ also kept the duplicate of each of the donation receipts of this case. The Defendant must prove that each of the donation receipts of this case was false, and the fact that the Plaintiff did not have any details of remittance related to the Plaintiff’s donation, or that there was no record on the record that ○○ voluntarily prepared and kept by ○○○ does not prove the fact of taxation of each of the dispositions of this case. The Plaintiff donated the amount under each of the donation receipts of this case to ○○○○, and each of the donation receipts of this case was not false.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination of procedural defect assertion

1) Defects that did not conduct a tax investigation on the plaintiff

According to Article 80 (2) 3 of the former Income Tax Act, the head of a tax office having jurisdiction over the place of tax payment shall correct the tax base and tax amount for the relevant taxable period in cases where a person who has submitted a report of income deduction for wage and salary income under Article 140 of the former Income Tax Act receives a receipt entered differently from the fact, and where it is deemed difficult for the withholding agent to confirm whether the income is unjustly deducted, and Article 142 (3) 2 of the former Enforcement Decree of the Income Tax Act provides that the person shall receive and submit false evidentiary data or false documents. Article 142 (1) of the former Enforcement Decree of the Income Tax Act provides that the determination or correction of tax base and tax amount under Article 80 of the former Enforcement Decree

Article 80 (2) 3 of the former Income Tax Act provides for the following facts: (a) the Plaintiff received income deduction for wage and salary income for each taxable period in 2009 and 2010, the Defendant conducted the investigation of the instant case with respect to ○○○○○○○, based on the Donwon Card, Gagwon Card, Gagym, and the passbook of ○○○○○, etc. confirmed as a result of the investigation of the instant case; (b) the Plaintiff recognized the actual amount of contribution to ○○○○○ as KRW 200,000, and KRW 350,000,000; and (c) the fact that each of the instant donations receipts was deemed false; (d) the Plaintiff issued each of the instant dispositions to the Plaintiff, based on the aforementioned evidence; (e) Article 80 (2) 3 of the former Income Tax Act provides that the tax base and tax amount of the relevant taxable period should be corrected in cases where a person who submitted a report of income deduction was received receipts different from the facts; and (b) Article 80) provides that the tax base and tax base and tax amount should be corrected.

In accordance with the proviso of the Income Tax Act and Article 143 of the Enforcement Decree of the Income Tax Act, indirect data without direct evidence

It is a concept corresponding to the "presumed investigation" that is estimated and taxed by estimation, and such on-site investigation is an objective method that can be considered as a method of disseminating the actual tax base.

Although there is no restriction (Supreme Court Decision 97Nu20304 delivered on January 15, 199), (3) where a taxpayer receives taxation data by conducting a tax investigation, etc. against a person other than the taxpayer, and thereby a tax is imposed on the taxpayer, Article 81-15(1)2 of the Framework Act on National Taxes and Article 63-14(2)2 of the Enforcement Decree of the same Act provide that the tax authority shall notify the taxpayer of the pre-announcement of taxation, and on the premise that the taxpayer may be subject to taxation based on the results of the tax investigation against the person other than the taxpayer, and that the taxpayer has the opportunity to dispute over the appropriateness of taxation before the tax assessment through the aforementioned pre-announcement of taxation and the pre-assessment review procedure, the Plaintiff based on the data received as a result of the investigation in this case.

The determination of the amount of income deduction related to each donation receipt of this case can be recognized as a legitimate real estate investigation. The Defendant cannot be deemed to have violated Article 80(2) of the former Income Tax Act and Article 142(1) of the former Enforcement Decree of Income Tax Act solely on the ground that the Plaintiff did not conduct a tax investigation.

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit.

2) Defects related to the notice of taxation

A) Relevant statutes

Article 81-15 (1) (main sentence) of the Framework Act on National Taxes provides that "pre-announcement of taxation prescribed by Presidential Decree" in Article 81-14 (2) of the former Enforcement Decree of the Framework Act on National Taxes refers to any of the following subparagraphs: (a) a person who has been notified may request the head of a tax office or the director of a regional tax office to examine the legality of the notification (hereafter in this Article pre-assessment review) within 30 days from the date of receipt of the notification; (b) a person provides for "pre-announcement of taxation prescribed by Presidential Decree" in Article 81-12; and (c) a person provides for "pre-announcement of taxation" in Article 81-15 (1) 2 of the Framework Act on National Taxes; and (d) a person other than the relevant taxpayer who has been confirmed in the on-site investigation under Article 63-3 provides for "pre-announcement of taxation for investigation or on-site investigation under Article 81-5 of the Enforcement Decree of the same Act; and (d) an investigation or on-site investigation under Article 1 of the Act:

B) Relevant legal principles

The principle of due process stipulated in Article 12(1) of the Constitution is not limited to criminal proceedings, but is applied to all state actions, and such principle of due process should be equally complied with when a tax official exercises the right to impose taxes (see Supreme Court Decision 2012Du911, Jun. 26, 2014).

Preliminary notice of taxation has the nature of a preventive remedy system that enables the tax authority to reduce the possibility of the illegal and unreasonable disposition and reflect its arguments before the taxation is made, in comparison with the fact that the review, trial or administrative litigation conducted after the taxation disposition takes a large time and cost so that the taxpayer can be protected by providing the taxpayer with an opportunity to state his opinion in the procedures such as the pre-assessment review with sufficient time to prepare information, etc. In addition, the pre-assessment notice and the pre-assessment review system have the nature of a preventive remedy system that enables the tax authority to reduce the possibility of the illegal and unreasonable disposition and reflect its arguments before the taxation disposition is revised by Act No. 5993 of August 31, 199, and the Framework Act on National Taxes was amended by Act No. 5993 of August 31, 199.

It was introduced for advancement, and the pre-assessment review, which can be claimed by the person who received the pre-announcement of taxation, is also subject to examination of illegal and unfair dispositions, such as administrative litigation.

In comparison with ex post facto remedies, the scope of remedies is widened.

Unless special circumstances exist, such as where the Framework Act on National Taxes and the former Enforcement Decree of the Framework Act on National Taxes do not provide a prior notice of taxation or provide a taxpayer with an opportunity for pre-assessment review by failing to provide a prior notice of taxation that should have been essential before the tax assessment, and thus, constitutes a case where a taxpayer infringes a procedural right and a serious procedural defect that has no choice but to be controlled by denying the validity of the tax assessment, and thus, such tax assessment constitutes a case where the procedural defect is grave and apparent and invalid (see, e.g., Supreme Court Decisions 2015Du52326, Apr. 15, 2016; 2016Du4928, Dec. 27, 2016).

C) Determination

In light of the above provisions and relevant legal principles, this case is health in light of the above legal principles. The defendant conducted a sample investigation on ○○ company, and conducted the investigation of this case by converting it into a general tax investigation and a criminal tax investigation, and according to the confirmed taxation data, the fact that the defendant issued each disposition of this case to the plaintiff prior to the disposition of this case is as seen earlier, and there is no dispute between the parties concerned. However, the investigation of this case constitutes an on-site investigation for taxation disposition under Article 63-3 of the former Enforcement Decree of the Framework Act on National Taxes, as a "investigation of an offence case" under Article 81-5 of the Framework Act on National Taxes or a "investigation to correct the tax base and amount of national tax" under Article 63-15(1)2 of the former Enforcement Decree of the Framework Act on National Taxes, which constitutes a field investigation for taxation disposition under Article 81-15(1)2 of the Framework Act on National Taxes, and the defendant did not receive such advance notice even before giving the plaintiff a prior notice of taxation under Article 81-15(2) of the Framework Act.

Therefore, each of the dispositions of this case is a procedural defect that infringes the plaintiff's procedural right related to the request for pre-assessment review because the defendant did not notify the plaintiff of pre-assessment of taxation, and such defect is a serious defect that has no choice but to be controlled in a manner that denies the validity of the taxation disposition as seen earlier, and its existence is objectively apparent by the relevant provisions. Thus, each of the dispositions of this case is null and void without further review of the remaining arguments of the plaintiff.

4. Conclusion

Of the instant lawsuit, the part of the Defendant’s claim for nullification of the portion exceeding KRW 292,197 among the disposition of imposition of global income tax of KRW 475,371, which was notified by the Defendant against the Plaintiff on April 13, 2012, is dismissed, and the remainder of the Plaintiff’s claim is with merit, and thus, it is so decided as per Disposition.