Incheon District Court 201Guhap320 ( November 02, 2011)

Early High Court Decision 201J 1962 ( October 30, 2011)

There is no ground to deem that prior notice of taxation should be given prior to being served with the notice of tax payment.

The plaintiff asserted that the notice of tax payment in this case is invalid because the defendant did not serve the notice prior to the disposition in this case, but there is no ground to view that the defendant must give the notice of tax payment prior to the delivery of the notice of tax payment. Thus, the plaintiff's assertion is without merit.

Article 56 of the Framework Act on National Taxes, Article 61 of the Framework Act on National Taxes,

2011Nu40860 Revocation of Disposition of Imposition of Value-Added Tax

XX

Deputy Director of the Tax Office

Incheon District Court Decision 201Guhap320 Decided November 2, 2011

April 6, 2012

May 11, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. Each disposition of the value-added tax of KRW 000 and KRW 000, which the Defendant imposed on the Plaintiff on December 8, 2010, shall be revoked.

1. Quotation of judgment of the first instance;

The reasons for this decision are as follows, except for the dismissal of Paragraph 2 of Article 2 of the judgment of the court of first instance, and therefore, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts in height:

2. Whether the instant lawsuit is lawful

A. Part demanding revocation of value-added tax

1) Article 55(1) of the Framework Act on National Taxes provides that “Any person whose rights or interests are infringed upon due to the receipt of an unlawful or unreasonable disposition, or a failure to receive a necessary disposition, as a disposition under this Act or other tax-related Acts, may request the revocation or modification of such disposition, or file a request for necessary disposition.” Article 56(2) provides that “In order to seek the revocation of such disposition, the procedures for a prior trial, such as a request for examination or a request for trial, etc., under this Act,

In addition, the above request for evaluation or adjudgment, etc. shall be filed within 90 days from the date (when a notice of disposition is received, the date of receiving the notice) on which the relevant disposition is known pursuant to Articles 61(1) and 68(1) of the Framework Act on National Taxes, and where an objection is filed earlier, an objection shall be filed within 90 days from the date (where a notice of disposition is received, the date of receiving the notice) on which the above disposition is known pursuant to Articles 66(6) and 61(1) of the Framework Act on National Taxes, and any administrative

As seen in the background of the above disposition, since the Plaintiff received the tax payment notice of this case on December 10, 201 and filed an objection on March 31, 201 after the ninety days from that date, the Plaintiff cannot be deemed to have gone through legitimate procedures for the instant disposition. Therefore, the part of the claim for revocation of value-added tax in the lawsuit of this case is unlawful as it did not go through legitimate pre-trial procedure (the Plaintiff did not deliver the pre-announcement prior to the instant disposition, and thus, the delivery of the notice of this case is invalid. However, although the Defendant asserted that the delivery of the notice of tax payment in this case is invalid, there is no ground to deem that the notice of tax payment must be issued prior to the Defendant’s delivery of the notice of

2) On the other hand, the plaintiff asserts that the disposition of this case was imposed on a different premise, and its defect is so serious and clear that it becomes null and void, even though the contract, which is the premise for the imposition of value-added tax, was retroactively extinguished due to the cancellation of the sales contract for the commercial office of this case.

However, as long as a lawsuit seeking revocation is in the form of a lawsuit seeking revocation, it shall meet the requirements of the principle of administrative adjudication prior to the filing of the lawsuit (see, e.g., Supreme Court Decision 90Nu1892, Aug. 28, 1990). As seen earlier, the Plaintiff did not undergo such legitimate procedure of administrative adjudication. Therefore, the Plaintiff’s above assertion cannot be accepted.

B. The part on the claim to revoke additional dues

If a national tax is not paid by the due date, the additional dues or increased additional dues are naturally generated by legal provisions of the tax authority without a final procedure and have the nature of damages for delay. Thus, the notice of additional dues or increased additional dues that the tax authority notifies while issuing a ordinary tax payment notice cannot be deemed a disposition that is subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005).

Therefore, among the instant lawsuits, the part concerning the claim for revocation of the instant additional charges of the same nature is unlawful.

3. Conclusion

Thus, all of the plaintiff's lawsuits of this case shall be dismissed. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.