If it is clear whether the object of taxation is subject to an accurate examination of facts, it cannot be seen that the defect is apparent, and it does not constitute an invalidation.

The circumstances that the plaintiff lent only the name can only be revealed only when the facts should be accurately examined, so it cannot be said that the defect is apparent, and it cannot be said that it is void as a matter of course.

Article 39 of the Value-Added Tax Act

2016Nu5761 Revocation of Disposition of Imposition of Value-Added Tax

The AA

o Head of the tax office

December 9, 2014

January 20, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance of the Gu office revoked the judgment of the court of first instance, and confirmed that the defendant's disposition of imposition of value-added tax ggg,gg orgg (including additional tax 115,358,01 won) against the plaintiff on June 15, 2004 is invalid.

1. Details of the disposition;

A. Purchase of real estate by the Plaintiff

1) From May 4, 198 to December 31, 1999, JJ was operated for companies engaged in the business of manufacturing synthetic resin.

2) On August 16, 1999, the Plaintiff registered the business of leasing real estate (hereinafter referred to as the “instant real estate”) under the name of “DD Sports Center” with the name of “DD Sports Center,” which is the third-class apartment building (hereinafter referred to as “the instant real estate”) in the era of 451, Dong-dong, Incheon. On August 16, 199, the ownership transfer registration was made in the name of the Plaintiff for the instant real estate on August 19, 199.

B. Closure of the instant business

On September 17, 1999, the Defendant received an early refund report on the value-added tax on the building portion due to the purchase of the instant real estate from EE, who represented by the Plaintiff, on October 9, 1999, and refunded value-added tax FF, FF, and FFF to the passbook in the name of the Plaintiff. On October 31, 1999, the Defendant reported the closure of business on October 31, 199 for the instant business.

C. Defendant’s taxation disposition

The defendant acquired the real estate of this case on June 15, 2004 and commenced the business of this case, but discontinued on October 31, 1999 and did not report and pay the value-added tax on the building concerned.

- 3- For the reason that the Plaintiff corrected and notified the Value-Added Tax Ggg,ggg,ggg (including additional tax) for the second term of 199 (hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3, 4, 7, Eul evidence Nos. 1 through 7 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is null and void

A. The plaintiff's assertion

The Plaintiff asserts that the disposition in this case is null and void for the following reasons (the Plaintiff asserted the extinctive prescription of five years after the imposition of value-added tax on June 19, 2013 with the statement of the complaint filed on June 19, 2013, however, the Plaintiff withdrawn the said claim with the statement in the preparatory document written on October 28, 2013, and thus, it is not separately determined as to this part).

1) The Defendant notified the Plaintiff of the instant disposition by public notice, but the Defendant’s service by public notice was inappropriate as it did not meet the requirements. Thus, the instant disposition is null and void as it was not lawfully notified.

2) On July 199, the Plaintiff received a proposal from E to accept the JJ as the funds for the instant real estate provided as collateral and the loan. The Plaintiff: (a) allowed E to complete the registration of ownership transfer on the instant real estate in the name of the Plaintiff; (b) to obtain a loan under the name of JJ from HH Mutual Co., Ltd.; and (c) paid taxes normally in the process of acquiring the instant real estate in the name of the Plaintiff; (b) there was no registration of business with the trade name called DD sports center having the instant real estate as its domicile; and (c) there was no application for refund of value-added tax or no delivery; and (d) all of them were made using the Plaintiff’s name without notifying the Plaintiff, the instant disposition taken against the Plaintiff, who is only the nominal owner

- 4- The degree of the defect is unlawful in violation of the taxation principles and shall be null and void in a serious and apparent manner.

3) Even if the Plaintiff registered its business regarding the instant business, the Plaintiff was not subject to value-added tax on October 31, 1999 on the grounds that the Plaintiff comprehensively transferred the instant business to the LLWz club Co., Ltd., a defective business closure report on October 31, 1999. However, the instant disposition made on a different premise is null and void due to significant and apparent defects.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On July 199, EE intended to purchase the instant real estate to operate the Sports Center, but it was not possible to obtain a loan from a financial institution. Therefore, E requested the Plaintiff to acquire the instant real estate under the Plaintiff’s name and receive a loan from a financial institution.

2) On July 2, 1998, the Plaintiff entered into a contract with E to transfer all the shares of J to E, and as proposed by E, entered into a sales contract with the Korean Real Estate Trust Co., Ltd., Ltd., which managed the instant real estate under the name of the Plaintiff on July 20, 199. On August 19, 199, the Plaintiff completed the registration of ownership transfer under the name of the Plaintiff on August 19, 199. On the same day, the Plaintiff received a loan from H Mutual Savings and Finance Company, and completed the registration of ownership transfer claim on September 6, 1999 on the ground of the same day.

3) The EE operates the Sports Center under the mutual name called “Dsports club” on the instant real property.

- 5- He paid the amount of monthly 2, 3, and 3 won as interest for loans to HH Mutual Savings and Finance Company. 4) EE applied for the refund of value-added tax on the acquisition of the real estate of this case with the power of attorney prepared in the name of the Plaintiff on September 17, 1999, the Plaintiff’s certificate of personal seal impression, and a copy of resident registration certificate. On October 9, 1999, the Defendant remitted the amount of value-added tax refund FF, FF, FF, and FF to the national bank account under the name of the Plaintiff, and E withdraws the above money on the same day.

5) A plaintiff who affixed a seal on the power of attorney (No. 7-1) submitted by E in the course of filing an application for refund.

It is not clear whether the identity of the seal affixed to the name and the Plaintiff’s certificate of personal seal impression (No. 7-2) is identical, and the address, name, and resident registration number recorded in the above letter of delegation is different from the Plaintiff’s penology.

6) EE was present at the court of first instance as a witness, and stated that the JJ was fully subject to the registration of the business and the refund of value-added tax from the person who was in charge of the former affairs, and this KK, who was in charge of the former affairs of JJ, was present at the court of first instance as a witness, and was engaged in the acquisition of gold Do Co., Ltd and the acquisition of the instant real estate in the name of the Plaintiff. However, this case’s business registration or value-added tax refund related to the instant

7) On the other hand, on November 15, 1999, the Plaintiff operated the instant real property as the location of the instant real property, and the subject of compulsory execution against the equipment related to the instant business. As to this, the Plaintiff and the Plaintiff and the MMMMMMMAS corporation jointly joined the Plaintiff and filed a lawsuit of demurrer against the third party by asserting the ownership of separate goods as the Incheon District Court 2000 group 51574, respectively. The above court dismissed the Plaintiff’s claim on April 27, 2001 on the grounds that the pertinent goods belong to the ownership of EE, and dismissed the Plaintiff’s claim of MMMASIS corporation claiming the sale of the ownership reservation portion, and the judgment of the first instance court rendered a judgment accepting the claim of MMASIE corporation claiming the sale of the ownership reservation portion, which is as it is, 6--

was finally determined.

[Ground of recognition] The evidence set forth above, Gap's evidence set forth in Gap's 8 and 9, the appraisal result of the first instance appraiser Kim J-il, the witness E-E of the first instance court, Eul-K's testimony and the purport of the whole pleadings

D. Determination

1) Whether service by public notice is lawful

Article 11 of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007; hereinafter the same) provides that "a child whose domicile or place of business is unclear as one of the reasons for service by public notice", "a person who is obliged to receive service with due care as a good manager", "a person who investigates his domicile or place of business but whose domicile or place of business is unknown (see Supreme Court Decision 98Du18701, May 11, 199)", "a person who is able to serve with due care as a 60th anniversary of the fact that 6th anniversary of the fact that 6th anniversary of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007; hereinafter the same shall apply)," "a person who is obliged to serve with due care as one of the reasons for service by public notice", "a person whose domicile or place of business cannot be identified" as 1.6th or 4th 6th 6th 2 years of the present residential term.

- 7- On July 31, 2001, the "ex officio cancellation" was registered, and on June 12, 2007, the resident registration place of this case was re-registered as the resident registration place of this case, and the move-in report was made at 192-1, 802, Ngu Odong 192-1, 191, Dong 802 on the same day. ④ According to the certificate of entry and departure against the Plaintiff, the Plaintiff left Korea on December 28, 199, and returned to the Plaintiff on May 6, 2004, and again returned to the Plaintiff on June 14, 2004, without the Defendant's due diligence to the defect of entry to the Plaintiff on June 14, 2004, and the Plaintiff could not have any other place of business to be served on September 14, 201, and the Plaintiff could not have any other place of business related to the registered registration place of this case.

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

2) Whether there is a serious and clear defect in the instant disposition

Generally, a tax disposition imposed on a person who does not have any factual relation, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to have a significant and apparent defect. However, in a case where there are objective circumstances to mislead him as to any legal relation or factual relation which is not subject to taxation, and where it is possible to accurately investigate the factual relation, if it can only be clarified whether it is subject to taxation or not, the defect

- It cannot be deemed that an unlawful taxation disposition that misleads the actual business owner of the instant real estate and the actual purchaser of value-added tax on the instant real estate is E, as it is impossible to be apparent in appearance (see, e.g., Supreme Court Decision 2001Du7268, Sept. 4, 2002). According to the above facts of recognition, it is recognized that the actual business owner of the instant workplace and the actual purchaser of value-added tax on the instant real estate are E, but the above facts of recognition are acknowledged, and the Plaintiff entered into a title agreement with E, i.e., to acquire the instant real estate in the name of E, the Plaintiff reported and paid taxes related to the acquisition of the instant real estate in the name of E, ii) the Plaintiff operated the Sports Center in the name of the instant real estate and applied for early refund of value-added tax on the instant real estate in the name of the Plaintiff, and it is difficult to deem EE as the Plaintiff’s entry into the name of K 198 business operator and the Plaintiff’s report were void.

Therefore, on different premise, the first-party plaintiff's assertion on this part is without merit.

3) Whether the instant business was transferred

- 9- The facts that the report of business closure was made on October 31, 199 with respect to the instant business are acknowledged as above. According to the Eul evidence No. 9, the real estate of this case was opened on November 15, 1999, but it is recognized as the actual business owner of the instant business. However, in light of the fact that the actual business owner of the instant business is E-E, it is difficult to view that there was a business transfer between the Plaintiff and the Plaintiff on the instant business, and there is no other evidence to prove otherwise, the Plaintiff’s assertion on this part is without merit without any further need.

3. Conclusion

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

The presiding judge shall admonish a judge;

Judgment's normal rules

Judges Go Il-il

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Relevant statutes

▣ 구 국세기본법(2007. 12. 31. 법률 제8830호로 개정되기 전의 것)

Article 11 (Service by Public Notice) (1) Where a person to be served with documents falls under any of the following subparagraphs, documents shall be served:

service of documents under Article 8 is made after the lapse of 14 days from the date on which the summary of the notice is made;

shall be deemed to have been made.

1. Where the domicile or business office is located overseas and such service is difficult;

2. Where his domicile or business office is not evident; and

3. Documents served by registered mail, in a case where the persons prescribed in Article 10 (4) have no place to serve them;

Cases as prescribed by the Presidential Decree, such as the cases of return by the addressee’s absence;

(2) Public notice under paragraph (1) shall have jurisdiction over national tax information and communications networks, tax offices and places where relevant documents are served.

Posting on the bulletin board or other appropriate places of a Si/Gun/Gu (referring to an autonomous Gu; hereinafter the same shall apply) or in the Official Gazette or work

Other notices shall be published in a newspaper. In such cases, if a service by public notice is made via national tax information and communications networks, other notices

service by public notice shall be conducted together with such method.

Article 14 (Real Taxation) ① It is only the title of income, profit, property, act or transaction subject to taxation.

(2) If there is another person to whom such person belongs, the person to whom such person belongs shall be liable for tax payment.

shall apply.

(2) The provisions on the calculation of tax base in tax-related Acts shall include the name or form of income, profit, property, act or transaction.

Notwithstanding the substance, it shall apply according to the substance.

▣ 구 부가가치세법(1999. 12. 28. 법률 제6049호로 개정되기 전의 것)

Article 6 (Supply of Goods) (1) The supply of goods shall be delivered for all contractual and legal grounds.

shall be deemed to have been transferred or transferred.

(2) A direct company for its own business, for goods produced or acquired by an entrepreneur in connection with his/her own business.

In the case of use and consumption, those prescribed by Presidential Decree shall be deemed the supply of goods.

(3) The individual person of an entrepreneur or his/her employee who produces or acquires goods in connection with his/her business.

use or consumption for any purpose or for any other purpose, or donation to his customer or to many unspecified persons;

all those as determined by the Presidential Decree shall be considered as the supply of goods.

(4) The remaining goods when an entrepreneur discontinues his/her business shall be deemed to be supplied to him/her.

In the case of registration under the proviso of paragraph (1), the actual failure to commence the business shall also apply.

The same shall apply.

(6) Offering goods as security and transferring a business (the business operator shall pay taxes under Article 16).

Delivery of account statements, except for cases as prescribed by the Presidential Decree, shall not be deemed the supply of goods.

section 3.

Article 13 (Tax Base) (1) The tax base of value-added tax on the supply of goods or services shall be as follows:

The sum of supply values (hereinafter referred to as "value of supply"): Provided, That value-added tax shall not be included.

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