Cho Jae-2014-China-4700 ( December 15, 2014)

service place refers to the place of business in which the tax authority is aware of the taxpayer's address by making an investigation with due care as a good manager;

service place refers to the place of business in which the tax authority is aware of the taxpayer's address by making an investigation with due care as a good manager;

Article 8 of the Framework Act on National Taxes

2014Guhap68287 Revocation of Disposition of Imposition of Value-Added Tax

AA

1. The head of △△ Tax Office;

2. ○○ head of tax office.

April 1, 2016

April 29, 2016

1. The disposition in the separate sheet issued by the Defendants against the Plaintiff shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

The defendants decided and notified the value-added tax and the general income tax as shown in the attached Form on the ground that the plaintiff was delinquent in national taxes while running the business with the trade name "○○tech" (hereinafter "each disposition of this case").

[Ground of recognition] Facts without dispute, entry of evidence Nos. 13 and 14 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Facts of recognition;

A. The relationship between the Plaintiff and GG

“The Plaintiff and GGG married on November 13, 2007, but the Plaintiff did not properly engage in economic activities during the marriage period. The Plaintiff did not pay taxes to the Plaintiff in establishing and operating a business entity called “○○tech,” which was represented by the Plaintiff without the Plaintiff’s consent, and did not enter the house after January 2010, and won a lawsuit claiming divorce and consolation money, etc. on July 10, 2015 (the ○○ District Court Decision 200○○○○○○○○○○○○○9○, and July 28, 2015).” Meanwhile, the Plaintiff filed a complaint against GG around November 7, 2014 with the purport that the Plaintiff is residing in a foreign country (the Plaintiff’s request to resolve the amount of taxes in arrears with the Plaintiff’s money).

(b) Registration of business and reporting of value-added tax of GG;

On October 21, 2009, GG made an application for business registration using the Plaintiff’s foreign registration certificate, etc. with its trade name “○○tech”, the representative “Plaintiff”, and “GGGGG” (the place of business of the business registration certificate was corrected to ○○○-dong, ○○○-dong, ○○○○-dong, ○○○, on December 24, 2009). The mobile phone and e-mail in the application were recorded in the GG’s telephone and e-mail address.

GG filed a value-added tax return on January 25, 2010 and May 27, 2010 with respect to a "○○tech" company on May 27, 2010, and on July 26, 2010, the first term value-added tax return was filed on July 26, 2010.

On the other hand, according to the business operator's basic inquiry, the representative address includes the Plaintiff's address (the Plaintiff's address (the Plaintiff's address of ○○○○-Gu 90○○○○○○○○ Office, and the GG also moved to the same address around September 2, 2009).

C. The notice of payment by the Defendants

The Defendants served the instant tax payment notice by each electronic service (number 1, 4, 5), mail (number 2), and service by public notice (number 3) as shown in the attached Form.

On May 16, 2011, an employer ID (ID) filed an application for electronic notification with “○○○○○○○,” registered e-mail “○○○○○○○○○○○○○.co., Ltd.” (the Plaintiff is not issued an authorized certificate, but the Plaintiff’s application for electronic notification is an authorized certificate under the Plaintiff’s name), and a tax notice was stored in the national tax information and communications network.

In the case of postal service, the notice of tax payment was served on April 13, 2010 on ○○○-dong 80, 200, 200.

In the case of service by public notice, a tax payment notice was served by registered mail on October 2, 2010 and November 26, 2010 at the same place of business as of November 26, 2010, but it was served by public notice (the payment deadline stated in the tax payment notice is October 25, 2010).

D. Attachment based on each disposition of this case

On June 30, 2014, the Plaintiff was notified that a seizure disposition was taken in accordance with each of the instant dispositions with respect to its insurance claims.

E. The plaintiff's previous trial procedure

On September 5, 2014, the Plaintiff filed an appeal with the Tax Tribunal on each of the instant dispositions, but was dismissed on December 15, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 5 through 7, 15, Eul evidence Nos. 10, 15, 16, and 19, Eul evidence video No. 8, and the purport of the whole pleadings

3. Determination

A. As to the defense prior to the merits

The defendants asserts that the lawsuit of this case is unlawful, since the plaintiff did not go through the pre-trial procedure within 90 days from the date of receiving the service of each disposition of this case.

Any request for evaluation or adjudgment under the Framework Act on National Taxes shall be filed within 90 days from the date the relevant disposition is known (if a notice of disposition is received, the date of its receipt) (Article 61(1) and Article 68(1) of the Framework Act on National Taxes). Documents under tax-related Acts shall take effect from the time when the person to be served reaches the person to be served with the electronic mail address designated by the person to be served with the electronic mail address (if stored in national tax information and communications networks, when stored in the national tax information and communications network), and shall be deemed to have reached the person to be served with the electronic mail address (Article 12(1) of the Framework Act on National Taxes). On the other hand, service by publication shall take place in certain cases such as where the person to be served with the registered mail was returned

However, as seen earlier, on October 21, 2009, GGG, the Plaintiff’s spouse, entered its cell phone and e-mail address in its application for business registration using the Plaintiff’s foreigner registration certificate, and the electronic notification also entered and applied for the same e-mail ID as its own e-mail ID (which seems to have been established by GG). Moreover, GG does not return to the house after January 2010, and is currently residing in a foreign country while avoiding the Plaintiff’s contact. Further, considering that the Plaintiff managed and used the account related to ○○tech or was directly issued an authorized certificate under the Plaintiff’s name, it appears that GGGG applied for business registration using the Plaintiff’s foreigner registration certificate without the Plaintiff’s consent.

In the case of electronic service, the Plaintiff did not appear to have known whether the Plaintiff applied for business registration of GG or applied for electronic notification, and as long as the ID and password that can access the national tax information and communications network were not known, it is difficult to deem that a tax payment notice was served on the Plaintiff solely on the ground that the Plaintiff stored the result of the disposition in the national tax information and communications network. Moreover, as long as the Plaintiff was difficult to ascertain whether the Plaintiff applied for business registration of the GG, the service of postal service cannot be deemed to have been served on the Plaintiff solely on the ground that the tax payment notice was served as the location of the location. Furthermore, in the case of service by publication, the term “place of service” under Article 11(1)3 of the Framework Act on National Taxes refers to the taxpayer’s address or place of business (see Supreme Court Decision 2015Du43599, Oct. 19, 2015).

In full view of these circumstances, the Plaintiff appears to have not known that the GG had engaged in the business or had not known that the amount of delinquent taxes was incurred before June 30, 2014, which was notified of the attachment under each of the instant dispositions, prior to the receipt of the notification of the attachment, and that each of the instant dispositions was known only when the notification of attachment was received.

Therefore, under the premise that each of the dispositions of this case did not go through legitimate procedures, the defendants' defenses prior to the merits cannot be accepted.

B. As to the merits

GGG used the Plaintiff’s foreigner registration certificate to register its business in the Plaintiff’s name without permission, applied for electronic public notice to the national tax information and communications network, and the fact that the return of value-added tax was filed is as seen earlier. In light of these facts, GG appears to have operated the business entity called “○○tech” in substance, and the Plaintiff appears to have abused its name.

Therefore, each of the dispositions of this case conducted on the premise that the plaintiff operated the business "○○tech" is unlawful.

4. Conclusion

Thus, the plaintiff's claim of this case is accepted on the ground of the reasons.