Since external defects cannot be deemed to be apparent in appearance, it shall not be subject to the invalidation of the year, and the non-prosecution disposition by the prosecutor shall not constitute the grounds for subsequent revision.

Even if there is a defect in the disposition of imposition, it shall not be deemed to be an apparent case, and thus, it shall not be deemed to fall under the invalidation of the disposition of imposition, and it shall not be deemed difficult to deem that there is a ground to rectify the post

Article 45-2 of the Framework Act on National Taxes, and reasons for latter cancellation under Article 25-2 of the Enforcement Decree of the Framework Act on National Taxes

2016Guhap52000 Revocation of Disposition Rejecting Value-Added Tax

AAA, Inc.

○○ Head of tax office

April 4, 2017

May 16, 2017

1. The part of the Plaintiff’s conjunctive claim that seeks revocation of the disposition imposing value-added tax on December 4, 2013 shall be dismissed.

2. The plaintiff's primary claim and the remaining conjunctive claim are all dismissed.

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

Cheong-gu Office

○ The primary purport of the claim

On December 4, 2013, the Defendant confirmed that the imposition of value-added tax for the first quarter of 2012 and the second quarter of 2012 by the Plaintiff is null and void.

○ Preliminary purport of claim

The Defendant’s imposition of value-added tax for the first term of December 4, 2013, 2012, and the imposition of value-added tax for the second term of December 2012, 2012, and the imposition of value-added tax for the second term of October 5, 2015, each of the dispositions rejecting the correction of value-added tax for the first term of December 4,

1. Details of the disposition;

A. The Plaintiff is running a wholesale and retail business with the trade name of "AAA ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○."

B. In the first and second taxable periods of value-added tax in 2012, the Plaintiff received from BB, CCC, and DD (hereinafter “the instant transaction party”) in the first taxable period of 2012, and filed a value-added tax return by deducting the above input tax amount from the output tax amount after deducting the supply value of ○○○○○, and the purchase tax invoice of ○○○○○○○ from the total supply value in the second taxable period of 2012 (hereinafter “instant tax invoice”).

C. On December 4, 2013, the Defendant: (a) conducted a tax investigation on the Plaintiff; (b) deemed the instant tax invoice as a processed tax invoice; and (c) imposed a disposition imposing value-added tax ○○○○○○ and value-added tax ○○○ for the second period of 2012 on the Plaintiff on the grounds that the said input tax amount was not deducted on the Plaintiff (hereinafter “instant disposition”).

D. On June 30, 2015, the Plaintiff was issued a non-prosecution disposition on charges of violating the Punishment of Tax Evaders Act by the ○○ Prosecutors’ Office’ Office (hereinafter “○○ Prosecutors’ Office”) on the charge of having violated the Punishment of Tax Evaders Act, and on August 27, 2015, requested the Defendant to rectify the instant disposition on August 27, 2015, but the Defendant rejected the instant disposition on October 5, 2015 (hereinafter “instant refusal disposition”).

E. The Plaintiff filed an objection against the Defendant on November 20, 2015, but was dismissed on December 15, 2015, and the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on March 11, 2016, but was dismissed on April 28, 2016.

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

2. Relevant statutes;

It is as shown in the attached Form.

3. Judgment on the main claim

A. The plaintiff's assertion

The Plaintiff received the instant tax invoice according to actual transactions with the transaction partner of the instant case, and the Plaintiff received a non-prosecution disposition on suspicion of violation of the Punishment of Tax Evaders Act against the Plaintiff, and thus, the instant disposition was rendered without any grounds for taxation, and its defect is significant and apparent, and thus, the instant disposition violates the good faith principle.

B. Determination

1) On the other hand, a taxation disposition rendered to a person who does not have any factual basis, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to have a significant and apparent defect, but in a case where there are objective circumstances that make it possible to mislead him as to certain legal relations or factual relations which are not subject to taxation, and where it can only be clarified whether it is subject to taxation or not, it cannot be deemed to have been apparent even if the defect is serious, and thus, it cannot be deemed to have been deemed to have been null and void as a matter of course (see, e.g., Supreme Court Decision 2001Du7268, Sept. 4, 2002).

2) On the other hand, the issue of whether the instant transaction parties indicated in the instant tax invoice as the supplier are the actual scrap metal supplier, not the data, can only be revealed after accurately grasping the facts through the investigation of the certificate of measurement, such as scrap metal, the statement of transaction, and the statement of transaction payment transfer, etc., and thus, it cannot be deemed that the instant tax disposition is null and void just because it is apparent even if there is a defect, and thus, it cannot be deemed that the instant disposition is an apparent case. Even if the Defendant did not ex officio revoke the instant tax disposition, it does not go against the good faith principle. Therefore, the Plaintiff’s above assertion

4. Determination on the conjunctive claim

A. As to the disposition of this case

The Plaintiff alleged that the disposition of this case was unlawful on the grounds that the disposition of this case was rendered against the charge of violating the Punishment of Tax Evaders Act. The Defendant filed a lawsuit seeking revocation of the disposition of this case without going through the procedure of prior trial such as a request for examination or a request for trial under the Framework Act on National Taxes.

According to Article 56(2) and (3) of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015; hereinafter the same), where a request for cancellation or alteration of a disposition is filed or a request for necessary disposition is filed, an administrative litigation may be instituted after going through a request for examination or adjudgment prescribed by the former Framework Act on National Taxes, and the administrative litigation shall be filed within 90 days from the date the decision on the request for examination or adjudgment is notified. However, according to the records, there is no evidence to acknowledge that the Plaintiff underwent the prior trial procedure under the former Framework Act on National Taxes, and the Defendant’s main defense is justified.

C. As to the disposition rejecting correction of the instant case

The plaintiff asserts that the disposition of non-prosecution by the prosecutor's office constitutes grounds for follow-up correction under Article 45-2 (2) of the former Framework Act on National Taxes and Article 25-2 of the Enforcement Decree of the same Act, but the defendant's disposition of refusal of correction

On June 30, 2015, it is difficult to conclude that the Plaintiff was issued a tax invoice of this case on the grounds that “The Plaintiff was issued a disposition of non-prosecution on the charge of violating the Punishment of Tax Evaders Act on the grounds that the pertinent transaction was conducted using the so-called data company’s name.” However, the following facts are as follows: ① A disposition of non-prosecution by the prosecution is not final and conclusive, such as the judgment; ② a criminal case is established for the purpose of punishing a tax evasion, and the amount of income is prescribed by the rules; ② a criminal case is established for the purpose of establishing taxable income for proper and fair taxation; ③ a transaction under private law is not immediately invalidated or revoked; ③ the content of a disposition of non-prosecution disposition of non-prosecution; ④ A criminal final and conclusive judgment may not be deemed grounds for subsequent rectification, but the Supreme Court does not have any grounds for subsequent rectification (see, e.g., Supreme Court Decision 208Du2171, Jan. 30, 2009).

5. Conclusion

Therefore, the part of the plaintiff's conjunctive claim seeking revocation of the disposition of this case is unlawful, and it is dismissed. The plaintiff's main claim and the remainder of the conjunctive claim are all dismissed. It is so decided as per Disposition.