Administrative fines imposed on violation of duties to issue cash receipts under the Punishment of Tax Evaders Act shall not be subject to administrative litigation.

The imposition of fines for negligence due to the violation of the obligation to issue cash receipts under Article 15 of the Punishment of Tax Evaders Act shall only be dissatisfied with the procedure set forth in the Regulation of Violations of Public Order Act, and shall not be

Article 15 (Violation of Duty to Issue Cash Receipts)

2018 Doz. 5134 Action for cancellation of a disposition of imposition of a fine for negligence

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The director of the tax office of Luxembourg

October 10, 2018

November 14, 2018

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing an administrative fine of KRW 275,729,229 against the Plaintiff on February 6, 2017 is revoked.

1. Details of the disposition;

A. From March 6, 2013 to December 31, 2015, the Plaintiff operated △△△△△△△△△ in the Eup of ○○○○○○ City by means of leasing her name and receiving the payment from the KimCC, and omitting part of the revenue amount in the process of reporting the revenue amount to the Defendant.

B. On February 6, 2017, the Defendant: (a) determined and notified the Plaintiff of imposition of value-added tax of KRW 158,252,430 and global income tax of KRW 48,03,330 on the omission of income from running a lodging business as above; (b) imposed a disposition imposing an administrative fine of KRW 275,729,229 on the Plaintiff, based on Article 15(1) of the Punishment of Tax Evaders Act and Article 162-3 of the Income Tax Act, on the ground that the Plaintiff, a real business entity, engaged in a lodging business, which is obligated to issue cash receipts, and did not issue it, on the ground that the Plaintiff did not issue it (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry in Eul evidence Nos. 1 through 5 (including each number in the case of additional number), the purport of the whole pleadings

2. Whether a request for amendment to a claim is lawful;

In a lawsuit seeking the revocation or alteration of an administrative disposition, if an administrative disposition seeking the revocation or alteration is different, the subject matter of the lawsuit is different, and thus, the alteration of a claim following the alteration of the administrative disposition is not allowed unless there is a special reason (see Supreme Court Decision 62Nu231, Feb. 21, 1963).

The plaintiff sought revocation of the disposition of this case, i.e., imposition of an administrative fine of KRW 275,729,229, which the defendant filed with the plaintiff through the original complaint of this case, i.e., revocation of the disposition of this case, and sought revocation of the disposition of KRW 25,747,120 on October 8, 2018. Each of the above dispositions is a separate administrative disposition that completely differs from the relevant legal basis and content, and thus, the plaintiff's application for modification of the purport and cause of the claim of this case is unlawful.

Accordingly, this court did not permit the plaintiff's application for modification on the date of the second pleading, and the court below decides only to the original purport of the claim.

3. The plaintiff's assertion

Since the Plaintiff’s revenue omitted in the course of running a lodging business was mainly a transaction involving a final consumer, it does not fall under the obligation to issue cash receipts under Article 162-3 of the Income Tax Act. Therefore, the Defendant should have imposed an additional tax on the Plaintiff, not an administrative fine under Article 15(1) of the Punishment of Tax Evaders Act, but an additional tax on the non-issuance of the tax invoice under Article 60(2)2 of the Value-Added Tax Act. Accordingly, the instant disposition should be revoked by erroneous interpretation and application of the provisions of Article 1

4. Whether the lawsuit of this case is legitimate

A. Defendant’s defense prior to the merits

The propriety of the disposition imposing fines for negligence must be judged only by the procedure under the Act on the Regulation of Violations of Public Order, and it cannot be asserted as an administrative litigation.

B. Determination

Articles 20(1) and (2), 21(1), 25, 36(1), and 38(1) of the Act on the Regulation of Violations of Public Order may file an objection in writing with the relevant administrative agency within 60 days from the date on which the administrative agency is notified of the imposition of the fine for negligence. In the event of an objection, the imposition of the fine for negligence shall lose its effect, and in the case of an objection, the administrative agency in receipt of the objection shall notify the competent court along with its opinion and documentary evidence within 14 days from the date on which the objection is filed, and the court in receipt of the notification shall decide the fine for negligence by decision stating the reasons therefor, and the parties and the public prosecutor shall file

In addition, Article 5 of the Act on the Regulation of Violations of Public Order provides that "the imposition and collection of fines for negligence, and the procedure of trial and enforcement, which conflict with the provisions of this Act, shall be governed by the provisions of this Act." In full view of the above provisions, the propriety of the imposition of fines for negligence by an administrative agency shall be determined by the procedure under the Act on the Regulation of Violations of Public Order, and thus, the imposition of fines for negligence shall not be deemed an administrative disposition subject to administrative litigation against an administrative agency (see Supreme Court Decision 2011Du19369, Oct. 11, 2012).

Since the disposition of this case made by the Defendant to the Plaintiff on the basis of Article 15 of the Punishment of Tax Evaders Act is imposed by an administrative agency on the Plaintiff’s violation of the obligation under the Income Tax Act, it constitutes the application of the Act on the Regulation of Violations of Public Order and its propriety should be determined in accordance with the procedure prescribed by the Act on the Regulation of Violations of Violations of Public Order. Therefore, the instant disposition cannot be deemed an administrative disposition that is subject to administrative litigation

5. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.