Where a decision on dismissal by the Tribunal has been made despite the lapse of the period for request, whether the procedure for the previous trial is legitimate

Since the National Tax Tribunal has filed an appeal after the lapse of 90 days from the date of the disposition of imposition of corporate tax, etc. even if the decision of dismissal was made by the National Tax Tribunal, the appeal constitutes an illegal lawsuit without

Article 55 of the Framework Act on National Taxes

1. The plaintiffs' appeals against the defendants are all dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

제1심 판결을 취소한다. 피고 서인천세무서장이 2006. 4. 11. 원고 김○완에 대하여 한 전남 ○○군 ○○면 ○○리 ○○○-5 답 1,936㎡에 관한 공매예고통지 및 인천 ○구 ○○동 ○○○-2, ○○○-5 ○○퀸스빌 1001호에 관한 압류처분, 피고 금천세무서장이 2004. 7. 1. 원고 ○○건설 주식회사에 대한 한 2002 사업연도 법인세 28,856,030원의 부과처분 및 원고 김○완에 대하여 한 소득금액변동통지를 모두 취소한다.

The reasoning for this Court’s reasoning is as follows: (a) the reasoning for this Court’s reasoning is the same as the reasoning for the judgment of the first instance court, except with the fact that “ September 20, 2005,” “ September 20, 2005,” No. 4, No. 11, 2004, Sept. 20, 200,” and thus, (b) pursuant to Article 8(2) of the Administrative Litigation

Therefore, the judgment of the court of first instance is justified, and the plaintiffs' appeal against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2007Guu12132, Nov. 07, 2007]

1. The part of the plaintiffs' action against the defendant ○○ Head of the tax office and the plaintiff's action against the defendant ○○○ Head of the tax office against the defendant ○○○ Head of the tax office is dismissed.

2. The remainder of the claim against the defendant Kim○-○○○○○ Head of the tax office is dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

On April 11, 2006, the head of ○○○ Tax Office issued a notice of public auction of 00 ○○○○○○-gun, ○○○○○○○○-gun, 627-5 Spot 1,936 m2, and the attachment of 001 ○○-dong, 379-2, 379-5 ○○○-do, 379-100 m2, and the head of ○○ Tax Office issued a notice of change in the amount of income on July 1, 2004 against Plaintiff ○○ Construction Co., Ltd., and revoked both the notice of change in the amount of income.

1. Basic facts

A. The plaintiff ○○ Construction Co., Ltd. (hereinafter "the plaintiff ○○ Construction Co., Ltd.") started on February 22, 1999 and closed down on December 31, 2003, and the plaintiff ○○ Construction Co., Ltd. (hereinafter "the plaintiff ○○ Construction Co., Ltd.") was the representative director of the plaintiff ○○ Construction Co., Ltd.

B. The director of the tax office of ○○○ Construction omitted sales equivalent to KRW 90,90,09,090, which was issued by the plaintiff ○○ Construction to the non-party ○○ Construction Co., Ltd. on August 12, 2002 and on August 20, 2002, in relation to the new construction of the ○○○○ Construction Co., Ltd., without reporting sales equivalent to the total value of KRW 90,90,09,090, and imposed corporate tax on the plaintiff ○○ Construction on July 1, 2004 (hereinafter referred to as the "disposition imposing corporate tax in this case"). After disposing of KRW 100,00,00,000, including value-added tax, to the plaintiff ○○ Construction Co., Ltd., the representative director of the ○○ Construction Co., Ltd., the head of the tax office having jurisdiction over the domicile of the plaintiff ○○○ Construction Co., Ltd.

C. Meanwhile, since the construction of Plaintiff ○○○○ was closed down, the head of the instant tax office sent the notice of imposition of the corporate tax to 1001 on July 3, 2004 on the part of the Plaintiff ○○○○○○○-dong 379-2 ○○○○○○○○○, the representative director of the Plaintiff ○○○, sent the notice of imposition of the corporate tax to 1001 on July 15, 2004 at the calendar of the notice of change in the amount of income (the notice of change in the amount of income in this case, hereinafter “the notice of change in income”).

D. Meanwhile, the head of the ○○○○ Tax Office did not return and pay the global income tax based on the above recognition and contribution, and on September 1, 2004, the said Plaintiff imposed an additional amount of KRW 33,880,690 on the global income tax for the year 2002 (hereinafter “instant disposition imposing the income tax”), and on the 17th day of the same month, the said notice of tax payment was sent to the said Plaintiff under the above ○○○○○ 1001.

E. In addition, on October 14, 2004, the head of the tax office of defendant ○○○○○○○○○○○○○○○○○-gun, the head of the tax office attached 1,936 square meters of the ○○○○○○○-gun, ○○○○○○○-gun (hereinafter referred to as "one real estate in this case") to collect the income tax of this case, and notified the attachment of each of the above claims on August 31, 2005 and Oct. 27, 2005 after attaching the claims and insurance claims of the deposit and insurance claims of the plaintiff ○○○○-gun, the head of the tax office of the tax office of defendant ○○○○○○-gun, which was owned by the plaintiff ○○○-gun, and notified the attachment of each of the above claims to the same domicile. The above notification is

F. However, on April 11, 2006, the director of the tax office of ○○○○ did not pay the income tax of this case, and on the same day, the director of the tax office issued a notice of public auction notice to the effect that he would request the above Plaintiff to sell the real estate to the Korea Asset Management Corporation (hereinafter “the notice of public auction of this case”). At the same time, on the same day, the plaintiff Kim○-dong ○○○○-dong 379-2, 379-5 ○○○○○-dong 379-5 ○○○ 1001 (hereinafter “the second real estate of this case”) additionally seized (hereinafter “the attachment disposition of this case”).

G. Accordingly, on June 15, 2006, Plaintiff Kim ○○ filed an appeal with the National Tax Tribunal seeking revocation of the disposition imposing the income tax of this case. On December 22, 2006, the appeal was dismissed on the ground that the period of appeal had already expired. In addition, the Plaintiffs filed an appeal against the Defendants on July 4, 2006 against the National Tax Tribunal, but was dismissed on November 9, 2006.

H. From January 14, 2002 to the date, Plaintiff Kim ○○ has continuously resided in the above ○○○○○○○-dong 379-2 ○○○○○○○ 1001, and both the notice of tax payment and the notice of change in income amount of the instant corporate tax and the notice of tax payment of the instant income tax were sent by registered mail at the above address. In addition, in the case of the notice of tax payment of the instant income tax, it is inquired that Plaintiff Kim ○○-○ was received on September 20, 2005, and the Plaintiff recognized the receipt of the notice of pre-announcement of public sale and the notice of attachment of the instant tax payment.

Evidence No. 1-1, Evidence No. 2, Evidence No. 5, Evidence No. 7-2, evidence No. 12, evidence No. 1-1 through 3, evidence No. 2-1 through 4, evidence No. 5-1, evidence No. 6-2, evidence No. 7-1, and No. 8-2, evidence No. 8-1, 2, evidence No. 9, Eul No. 10-1 through 7, evidence No. 12-1 through 4, evidence No. 13, evidence No. 15, evidence No. 16-1, and the purport of the whole pleadings, respectively.

2. Determination on the defense prior to the merits

A. Part on the imposition of corporate tax in this case and notice of change in income amount

(1) Defendant ○○○ Head of the tax office asserts that the lawsuit against Defendant ○○ Head of the tax office should be dismissed as it is unlawful since the lawsuit against Defendant ○○ Head of the tax office was not

(2) In order to file a lawsuit seeking the revocation of a tax disposition, the procedure of the preceding trial must be followed. A request for a trial must be filed within 90 days from the date (the date of receipt when a notice of disposition was received) on which the pertinent disposition was known. However, as recognized above, Plaintiff ○○ Construction closed on December 31, 2003, and the address of Plaintiff ○○○○○’s representative director was changed from January 14, 202 to ○○○○○○○ Dong 379-2 ○ 1001, and all the above notices of change in income amount were sent to the above address. The above notices of tax payment and income amount of the corporate tax of this case were sent by registered mail, and all the above items were not submitted to Plaintiff 1’s address, and in the case of the income tax payment notice of this case, Plaintiff 2 was found to have received corporate tax from Plaintiff ○○○○○ upon delivery of the tax notice of this case to Plaintiff 1’s address on April 11, 200006.

(3) Ultimately, the fact that the plaintiffs filed a request for a trial on July 4, 2006, which was more than 90 days after the plaintiffs received the notice of the imposition of the corporate tax in this case and the notice of the change in the amount of income, is recognized as above. Therefore, the plaintiffs' request for a trial is unlawful because the period of the request for a trial is excessive and the defect is not cured by the National Tax Tribunal's decision of dismissal. Thus, the plaintiffs' lawsuit against the defendant ○○ Tax Office's defendant ○○ Tax Office's defendant did not go through a legitimate procedure, and thus, it is all unlawful.

B. The part on the claim for the cancellation of the notice of the public auction in this case by the plaintiff Kim○○

(1) Defendant ○○○○ Head of the tax office asserts that the notice of public auction in this case is merely a notification of the concept of demanding the payment, and thus, it is not an object of appeal litigation.

(2) Generally, an administrative disposition is an act of an administrative agency under public law, which causes direct change in the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations on a specific matter, and giving rise to other legal effects. An act inside an administrative authority, which does not cause direct legal change in the legal status of the other party or other interested parties, such as an act inside the administrative authority, de facto notification, notification of concept, response to questioning, etc., cannot be subject to appeal litigation (see, e.g., Supreme Court Decision 9Du1113, Sept. 8, 200). Thus, the notice of public auction notice does not directly restrict or restrict rights or impose obligations on it, but is merely a notification of the concept of demanding the payment of delinquent taxpayers, and thus, it cannot be subject to appeal litigation.

(3) Therefore, the part seeking the cancellation of the notice of public auction of this case against the Defendant Kim○○○○ Head of the instant tax office is unlawful as it is the object of an act without disposition.

3. Judgment on the merits

A. As to the attachment disposition on April 11, 2006 by the head of ○○○○ Tax Office on the instant 2 real estate, the instant imposition disposition of income tax is null and void, and the instant attachment disposition based on the tax disposition of null and void is also illegal, and the instant attachment disposition based on the tax disposition of null and void is also illegal, and ② for the attachment disposition, it must go through the procedure of urging the taxpayer to make the attachment. The Plaintiff asserted that there is no error in the procedure because there is no record of being served with the reminder prior to the attachment disposition of this case.

B. However, as seen above, there is no evidence that the notice of tax payment of the income tax of this case was received by the plaintiff Kim ○ on September 20, 2004 at the mail-type inquiry session, and was returned differently. Thus, the tax payment notice of this case seems to have been lawfully served on the plaintiff Kim ○○○○. ② The plaintiff Kim ○○○ did not pay the income tax by the payment deadline on October 14, 2004 after urging several occasions by the head of the tax office of this case to seize the one real estate owned by the above plaintiff on October 14, 2004, and thereafter seized the bonds and insurance claims on August 31, 2005 and October 27, 2005, and eventually, on April 11, 2006, the tax payment notice of this case was issued along with the notice of pre-announcement of public sale of the real estate of this case. Thus, the seizure disposition of this case was made through legitimate demand procedure.

C. Therefore, the instant attachment disposition is lawful, and the Plaintiff Kim○-○’s assertion seeking its revocation is without merit.

4. Conclusion

Ultimately, the part of the plaintiffs' lawsuit against the defendant ○○ Head of the tax office and against the defendant ○○○ Head of the tax office's lawsuit against the defendant ○○○○○ Head of the tax office on April 11, 2006 seeking revocation of the notice of public auction as of April 11, 2006 is unlawful, and thus, it is dismissed. The remaining claim against the defendant ○○ Head of the tax office's defendant