The defect of the preceding disposition is not a valid one as long as it is not a valid one, but is not succeeded to the subsequent disposition, and the defect of the tax disposition is so serious that it is not a valid one unless it is apparent.

A notice of non-payment in the method of filing a tax return is not subject to a revocation lawsuit, but can be subject to an appeal litigation if there is a defect in the act of filing a return and constitutes grounds for invalidation. If a tax-exempt business operator files a return of value-added tax without statutes, and the tax-exempt business operator files a return of value-added tax, it cannot be deemed that such defect is apparent even if it

Article 22 of the Framework Act on National Taxes and Article 10-2 of the Enforcement Decree of the same Act

Articles 26 and 58 of the Value-Added Tax Act

2017Guhap282 Action to nullify the imposition of value-added tax

AAAAA

O Head of tax office

on October 02, 2017

on 14, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

It is confirmed that the part of KRW 13,731,980 among the disposition of collection of value-added tax imposed by the Defendant on the Plaintiff as shown in the attached list is invalid.

1. Basic facts

A. On February 2013, the Plaintiff reported the establishment of welfare facilities for the elderly to the head of Songpa-gu Seoul Metropolitan Government and operated the elderly welfare center at the 4,5,6th floor of the ○○ Women's Culture Center located in Songpa-gu Seoul Metropolitan Government, Songpa-gu, and operated a health room, a restaurant, a camera, and a beauty room. In addition, the Plaintiff was approved as an organization deemed a corporation by the Defendant around February 2013.

B. The Plaintiff did not pay the amount of tax when filing a revised return on the preliminary return of value-added tax for the first period of value-added tax in 2013; did not pay part of the amount of tax for the second period of value-added tax in 2014; and did not pay the amount of tax when filing a preliminary return on the second period of value-added tax in 2015 and the second period of value-added tax in 2015. Accordingly, the Defendant notified the Plaintiff of the total amount of KRW 18,224,302 (hereinafter “instant disposition”). The Defendant sent again a notice of payment of KRW 13,731,980, around December 2016, the Plaintiff did not pay part of the amount of tax for the payment notice, and the Plaintiff appears to have disputing KRW 13,731,980, the amount stated in the said notice).

[Ground of recognition] Facts without dispute, Eul evidence Nos. 4 through 6 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment on the Defendant’s defense prior to the merits

A. The parties' assertion

Since the Plaintiff, while operating a welfare center for older persons under the Welfare of Older Persons Act, provided convenience facilities for older persons, such as sports facilities, gymnasium, four-day shop, restaurant, etc., the above service constitutes "services provided as actual expenses by public interest organizations for their own business purposes" pursuant to Article 26 (1) 18 of the Value-Added Tax Act and Article 45 (1) 1 of the Enforcement Decree of the same Act, and thus, the value-added tax should be exempted. Nevertheless, if the Plaintiff filed a value-added tax return due to the Plaintiff's well-known knowledge of the Value-Added Tax Act, the defect is serious and obvious, and the Defendant filed

Accordingly, the defendant asserts that the notice of payment in the attached list is merely a notification of the same tax amount as the report filed by the plaintiff without any correction, and it cannot be deemed a disposition subject to administrative litigation. Thus, the lawsuit of this case seeking confirmation of invalidity should be dismissed.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) According to Article 22(1) of the Framework Act on National Taxes and Article 10-2 subparags. 1 and 2 of the Enforcement Decree of the same Act, value-added tax, in principle, constitutes taxes in the form of tax payment by which a taxpayer is obligated to pay the amount of tax after having been determined on the tax base and tax amount at the time when the taxpayer files a return to the Government (the preliminary return under Article 48(1) and the final return under Article 49(1) of the Value-Added Tax Act). In the case of the method of tax return, it is a collection disposition for the collection of the final tax and for the collection of the final tax, where a taxpayer merely files a return on the tax base and tax amount and notifies the tax amount identical to the reported matters without correction by the tax authority (see Supreme Court Decision 2003Du8180, Sept. 3, 204). However, if there are defects falling under the grounds for invalidation of a taxpayer’s filing of a return, the subsequent disposition succession is unlawful, and thus, it cannot be deemed a condition of collection.

2) According to the above legal principles, the Plaintiff asserts that the act of the return is null and void due to the serious and apparent defects in the report of value-added tax filed by himself, and sought confirmation of invalidity of the disposition of this case. As such, the Plaintiff’s act of the report of this case must be examined as to whether there exists any defect falling under the grounds for invalidation as a matter of course, and whether the disposition of this case is null and void due to succession to the disposition of this case, which is the disposition of collection.

3. Whether the instant disposition is null and void

A. The plaintiff's assertion

If the Plaintiff filed a value-added tax return because it was not well aware of the Value-Added Tax Act while providing services subject to VAT exemption, the defect is serious and clear, and thus the Plaintiff’s act of declaration is null and void. This defect is succeeded to the disposition of this case.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Article 26(1)18 of the Value-Added Tax Act provides that the value-added tax shall be exempted for the supply of goods or services prescribed by the Presidential Decree, which are goods or services supplied by organizations for religion, charity, science, relief, or other public interest. Article 45 Subparag. 1 of the Enforcement Decree of the Value-Added Tax Act provides that an organization permitted or authorized by, or registered with, the competent authority for the goods or services prescribed by the Presidential Decree shall include "goods or services supplied temporarily or provided free of charge for its proper business purposes".

On the other hand, whether a taxpayer’s act of filing a tax return constitutes invalidity due to a significant and apparent defect shall be determined reasonably by examining the purpose, meaning, function, and legal remedies for defective reporting acts, etc. of the relevant laws and regulations, which serve as the basis for the act of filing a tax return, from a teleological perspective, and by individually identifying specific circumstances that lead to the act of filing a tax return (see Supreme Court Decision 2

2) First of all, we examine whether the Plaintiff received only actual expenses as alleged by the Plaintiff and supplied services such as sports facilities, beauty parlors, four-day shop, and restaurant. According to the evidence No. 4, the Plaintiff submitted a report on collection of expenses to the head of Songpa-gu Seoul Metropolitan Government pursuant to Article 46(7) of the Welfare of Older Persons Act (where a person who has established a leisure and welfare facility for older persons intends to collect expenses from those who use the facility, he/she shall report to the head of the Gu, etc. in advance), but whether the service was supplied as actual expenses under the Enforcement Decree of the Value-Added Tax Act should be determined based on the actual facts, and the above report alone cannot be determined. Meanwhile, according to the purport of the evidence No. 4 and the argument No. 4, the Plaintiff’s fee for the restaurant operated by the elderly is 4,500 won, beauty room, and four-day shop shop is 10,000 or 25,000 won, and the Plaintiff’s assertion that the service was supplied at the facility’s expense is much more than 100 or 500 won.

3) Even if the Plaintiff’s provision of the service is subject to value-added tax exemption because the Plaintiff received only actual expenses and could be subject to value-added tax exemption, in cases where there are objective circumstances that could mislead the Plaintiff that it would be subject to taxation on any legal relations or factual relations that are not subject to taxation, and where it could only be clarified whether it is subject to taxation can be determined by accurately investigating the factual relations, it cannot be deemed that it would be apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation that misleads the Plaintiff into the fact subject to taxation cannot be deemed as invalid as a matter of course (see Supreme Court Decision 2011Du22723, Feb. 23, 2012). The Plaintiff’s provision of the service may be exempted from value-added tax depending on the difference between the cost and the service, and the service fee received by the Plaintiff appears to be somewhat higher than actual expenses, and the Plaintiff’s report on commencement of profit-making business (see evidence No. 4) to the Defendant on February 2, 2013).

4. Conclusion

The plaintiff's claim is dismissed as it is without merit, and the costs of lawsuit shall be borne by the plaintiff who has lost. It is so decided as per Disposition.