Seoul Administrative Court-2017-Gu Partnership-5843 (Law No. 18, 2018)

An administrative litigation shall be filed through the procedure of the preceding trial within a legitimate period;

A claim seeking revocation of a disposition of imposition is inappropriate without going through a prior trial procedure, and a claim seeking invalidation of a disposition of seizure was not made within a legitimate period, and thus, the lawsuit of this case is inappropriate.

Article 61 of the Framework Act on National Taxes

Seoul High Court 2018Nu50514

○ Kim

○ Head of tax office 1

December 12, 2018

on October 16, 2010

1. The plaintiff's appeal is dismissed.

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

Cheong-gu Office

The judgment of the first instance shall be revoked.

In the first place on September 6, 2003, the director of the tax office of defendant AA shall give the plaintiff the first place on September 6, 2003.

The imposition of the value-added tax of KRW 5,277,70 (including the additional tax), and the imposition of KRW 2,430,960 (including the additional tax) of KRW 2,430,960 (including the additional tax) in February 3, 2004, and the head of Defendant BB Tax Office against the plaintiff

8. The regular global income tax of 2001 661,490 won (including the additional tax) as of November 5, 2002

Each imposition of global income tax of KRW 330,740 on global income and KRW 2,762,550 (including additional tax) on August 5, 2003 as of August 5, 2003 shall be revoked in entirety.

Preliminary, Defendant AA director of the tax office on July 30, 2008 against the Plaintiff’s Dong Life Insurance Co., Ltd.

Attachment disposition against insurance money claims of KRW 13,595,530 and attachment disposition against KRW 6,407,30 on September 15, 2006 by the director of the tax office of defendant BB shall be revoked on September 15, 2006.

1. Quotation and revision of judgment of the first instance;

The reason why this Court is used in relation to this case is as stated in the reasoning of the judgment of the court of first instance except for the dismissal of Paragraph 4 of the reasoning of the judgment of the court of first instance as follows. Thus, this Court shall accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 42

[Supplementary Use]

4. Determination on the conjunctive claim

A. Whether the conjunctive claim is legitimate among the instant lawsuit

According to Articles 55(1) and 56(2) of the Framework Act on National Taxes, where a suit seeking revocation of a disposition under the Framework Act on National Taxes or other tax-related Acts is filed, a prior trial procedure, such as a request for review or adjudgment, is required. Article 2 subparag. 2 of the Framework Act on National Taxes stipulates the National Tax Collection Act as one of the tax-related Acts. Article 24(1) and Article 41 of the National Tax Collection Act provides for the seizure of claims. As such, the instant attachment disposition is a disposition for arrears under the National Tax Collection Act, which is a disposition for arrears under Article 5(1) of the Framework Act on National Taxes, and constitutes “disposition under tax-related Acts” under Article 55(1) of the Framework Act on National Taxes. Therefore, in order to file a suit seeking revocation of the instant attachment disposition, the former trial procedure under Article 56(2) of the Framework Act on National Taxes (see Supreme Court Decision 71Nu63, Feb. 22, 1972).

In other words, in addition to the purport of the arguments in the statement in Evidence Nos. 1, 2, 8, 9, and 10 returned to the instant case, the Defendants sent to the Plaintiff a document that “Written Guidance for Payment of Tax in Arrears” on March 24, 2017, the document was served on the Plaintiff on March 24, 2017, and the Plaintiff filed an appeal with the Tax Tribunal on April 5, 2017. On the first page of the written appeal filed by the Plaintiff with the Tax Tribunal, “The disposition authority: the Gu and Yongsan Tax Office, 7: the date of receipt of the notice of the disposition, 8.0: the date of receipt of the notice of the disposition: 9.00,000: 200:00,0000,0000,000,0000,000,000,000,000,000).

According to the above facts, the plaintiff can be deemed to have filed an appeal against the disposition of this case with the Tax Tribunal on April 5, 2017, and it cannot be deemed to have filed an appeal against the disposition of this case. This also applies to the case where the main text of the written appeal contains part of the claim for cancellation of the disposition of this case. Therefore, the part concerning the conjunctive claim in this case is inappropriate as it is an action for cancellation of the disposition of seizure without going through legitimate pre-trial procedure, and it cannot be viewed differently even if it is a revocation lawsuit in the sense of seeking confirmation of nullity of the disposition of this case ( even if the plaintiff is assumed to have filed a revocation lawsuit against the disposition of this case through legitimate pre-trial procedure, the plaintiff's conjunctive claim cannot be accepted for the following reasons).

(b) Judgment on the merits of the conjunctive claim - Family Judgment

1) The plaintiff's assertion

A) A person who actually owns and actually operates the pertinent pumps is not the Plaintiff but South AA. The Plaintiff acquired the pertinent pumps through security transfer while lending money to South A, and lent the name of the business operator to South A. As such, the value-added tax and global income tax on the instant pumps-related business are liable for tax to South A. Therefore, the instant attachment disposition based on the premise that the Plaintiff, who is only the nominal lender, is liable to pay taxes is illegal.

B) The Defendants did not give any notice to the Plaintiff regarding the instant attachment disposition. Accordingly, the instant attachment disposition is null and void as it lacks the effective requirements of the attachment.

C) The Defendants issued the instant attachment disposition without going through demanding procedures. Accordingly, the instant attachment disposition is null and void.

2) Determination

A) Even if the disposition of tax imposition and the disposition of arrears are separate administrative disposition, it cannot be deemed that the disposition of arrears is unlawful unless the disposition of tax imposition is revoked. However, if the disposition of arrears is merely a procedure for the execution of the disposition of taxation and it is null and void because it is merely a procedure for the execution of the disposition of taxation, the disposition of arrears for the execution of the disposition of taxation is null and void (see Supreme Court Decision 87Nu1009, Jun. 28, 198). In this case, the disposition of this case cannot be deemed unlawful, since there are no materials to deem that the disposition of this case was lawfully revoked, and the disposition of this case cannot be deemed null and void due to a significant and obvious defect in the disposition of this case. Accordingly, the plaintiff's first argument cannot be accepted.

B) Article 41(3) of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011) provides that “When the head of a tax office seizes the property under paragraph (1), he/she shall notify it to the creditor who is the delinquent taxpayer.” However, even if the head of a tax office did not give such notice, the disposition of seizure does not become null and void (see Supreme Court Decision 95Nu3282, Aug. 25, 1995). The Plaintiff 2

The second argument cannot be accepted.

C) Even if a seizure disposition was made without demanding procedures, such reasons alone are subject to seizure.

No significant and apparent defect in which a portion becomes null and void shall be deemed to be a significant and apparent defect (Supreme Court Decision 29 September 22, 1987).

Supreme Court Decision 87Nu383, Supreme Court Decision 87Nu1009, Jun. 28, 1988). The third person is the plaintiff's third person.

We cannot accept the argument.

2. Conclusion

Therefore, the lawsuit of this case is unlawful and thus dismissed, and the judgment of the court of first instance is just, and thus, the plaintiff's appeal is dismissed ( even if the part concerning the conjunctive claim is lawful among the lawsuit of this case, the conjunctive claim is without merit. However, in the case of this case where only the plaintiff appealed, the plaintiff cannot render a judgment of dismissal disadvantageous to the plaintiff, who is the appellant, in accordance with the principle of prohibition of disadvantageous alteration, and thus, the plaintiff's appeal shall be dismissed.)

1) The mere fact that there is an illegality in the disposition for the invalidation of a disposition is insufficient, and the defect is grave and obvious. Whether the defect is grave and obvious must be determined by reasonably examining the purpose, meaning, function, and the special nature of the specific case. As such, the imposition of value-added tax on a nominal business operator is a serious defect in violation of the substance over form principle, but it cannot be deemed that the defect is objectively obvious (see Supreme Court Decision 88Nu12110, Jul. 11, 1989). This legal principle also applies to the imposition of global income tax on a nominal business operator.