[1] The case where a taxpayer in a tax lawsuit can file a lawsuit claiming the revocation of a tax disposition without going through the procedure of the preceding trial

[2] Where the National Tax Tribunal requests a review on the disposition of increase in the amount of tax imposed by the National Tax Tribunal in response to the disposition of increase in the amount of tax imposed by the disposition of increase in the amount of tax to be increased again under the disposition of increase in the amount of tax imposed by the disposition of increase in the amount of tax imposed by the disposition of increase in the amount of tax brought by the disposition of increase in the amount of tax brought by the disposition of increase in the amount of tax imposed by the disposition of

[3] The case holding that there is a justifiable reason to file an administrative suit claiming the revocation of a disposition to correct the corporate tax reverted to the business year in question, on the grounds that it is reasonable to deem that the National Tax Tribunal had been given an opportunity to make a judgment on the facts and legal issues which form the basis of a disposition to correct the corporate tax reverted to the business year in question at the time of the judgment of the National Tax Tribunal on the disposition to correct the increase in

[4] The criteria for determining the taxation fact in the calculation of the taxable income of the corporate tax

[5] Whether a corporation's act of excessively reporting and paying corporate tax based on a window dressing settlement constitutes illegal consideration under Article 746 of the Civil Code (negative)

[6] The case holding that the principle of trust and good faith cannot be applied to a taxpayer in case where the taxpayer files a lawsuit seeking revocation of an excessive amount of tax paid after filing a report or paying an excessive amount of corporate tax by means of over-appropriating the assets or under-appropriating debts, etc.

[1] Articles 55 and 56 (2) of the Framework Act on National Taxes, Article 18 of the Administrative Litigation Act / [2] Articles 55 and 56 (2) of the Framework Act on National Taxes, Article 18 of the Administrative Litigation Act / [3] Articles 55 and 56 (2) of the Framework Act on National Taxes, Article 18 of the Administrative Litigation Act / [4] Article 4 of the Corporate Tax Act / [5] Article 746 of the Civil Act / [6] Article 15 of the Framework Act

[1] Supreme Court Decision 91Nu247 delivered on May 24, 1991 (Gong1991, 1794) Supreme Court Decision 92Nu4383 delivered on September 8, 1992 (Gong1992, 2914) Supreme Court Decision 99Du1557 delivered on September 26, 200 (Gong200Ha, 2249), Supreme Court Decision 99Du8039 delivered on March 27, 2001 (Gong2001Sang, 1043) / [4] Supreme Court Decision 90Nu10384 Delivered on July 27, 1993 (Gong193Ha, 2442)

Administrator Kim Nam-soo Co., Ltd. (Law Firm Sejong, Attorneys Seo Sung-sung et al., Counsel for the plaintiff-appellant)

Sejong District Court Decision 201Hun-Ga46 delivered on September 1, 201

Seoul High Court Decision 2004Nu19172 Delivered on July 15, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the assertion of misapprehension of the legal principle as to whether the previous trial procedure is required

A. In the tax administration, two or more administrative dispositions for the same purpose were conducted in the course of a phased and developmental process, and are related to each other. When the tax authorities have modified the taxation disposition subject to such disposition during the proceeding of a tax litigation and the tax authorities have shared the grounds for illegality, or when one of the persons liable for tax payment bears the same obligation by the same administrative disposition, it shall be deemed that the taxpayer may file an administrative lawsuit seeking the revocation of the taxation disposition even without going through the procedure of a prior trial, in case where there are justifiable grounds, such as where one of the persons liable for tax payment and the National Tax Tribunal has given the opportunity to re-determine the basic facts and legal issues, and where it seems that the taxpayer would be harsh to go through the procedure of a prior trial (see, e.g., Supreme Court Decisions 91Nu247, May 24, 1991; 92Nu4383, Sept. 8, 1992; 92Nu957, Sept. 26, 2000).

B. First, in light of the above legal principles, the portion of corporate tax for the year 1998, the year 1999, and the year 2001 shall be viewed.

According to the facts duly established by the court below, the plaintiff corporation (Colum 2, 2002, which was ordered to commence corporate reorganization procedures by the Seoul District Court on August 21, 2002, and the plaintiff was appointed as the administrator of the above reorganization company on December 16, 200 of the same year, and all the above companies, reorganization companies and managers before commencement of reorganization procedures are not distinguished, and the plaintiff is referred to as "the plaintiff") was dissatisfied with the revised disposition on October 2, 1998, 199 and 201, which is related to the corporation tax of 200.0, which is related to the revised disposition on February 21, 200, and the above revised disposition on February 20, 200, which is not a legitimate ground for rejection of the above revised disposition on May 1, 200, which is not a legitimate ground for rejection of the above revised disposition on February 21, 2003, which is not a legitimate ground for rejection of the above revised disposition.

Therefore, even if the Plaintiff did not undergo the pre-trial procedure on May 1, 2003 concerning the corporate tax amount attributed to the year 198, 1999 and 2001, the instant lawsuit on each of the above corporate tax portion cannot be deemed unlawful.

C. Next, in light of the foregoing legal doctrine, the part on corporate tax reverted to year 2000 should be viewed.

According to the facts duly established by the court below, the plaintiff declared that there was no tax base for corporate tax for the year 200, and that there was no tax amount to be paid. The defendant filed the lawsuit of this case without going through the pre-trial procedure for the correction of the disposition imposing corporate tax for the year 2000 as of May 1, 2003. However, the plaintiff is dissatisfied with the decision of 198, 1999, and 201 concerning corporate tax for the year 200, and the defendant's decision of change of tax base for corporate tax for the year 200, which was excluding the above pre-trial procedure for national tax payment for the year 1998, 199, and 2000, which was excluding the amount of corporate tax for the year 200, which was excluding the amount of corporate tax for the above pre-trial procedure, and it also rejected the plaintiff's previous decision of 200, which was excluding the amount of the pre-trial tax for the year 20000, and the amount of tax payment.

In such cases, even if permission to file an administrative litigation without going through the pre-trial procedure is allowed, the purport of Article 56(2) of the Framework Act on National Taxes, which provides that the provisions of Article 56(2) of the Framework Act on National Taxes, is unlikely to be disregarded, by utilizing the professional knowledge and experience of the tax authority prior to filing a lawsuit on the grounds of the massive double-redivity, professional technical nature, and due formation of order of taxation disposition, thereby preventing the lawsuit and clarifying the issues relating to the facts.

Therefore, the corporate tax portion belonging to the year 2000 among the instant lawsuit cannot be deemed unlawful.

D. Therefore, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the part of the previous trial procedure, contrary to what is alleged in the grounds of appeal. The Supreme Court decision cited in the grounds of appeal by the plaintiff is different from the case, and thus it is inappropriate to

2. As to the assertion of misapprehension of legal principles as to substance over form principle and good faith principle

A. In the calculation of the taxable income subject to corporate tax in light of the substance over form principle, the determination of the taxable income subject to specific tax law should be based on the substance of the transaction, regardless of the entry, account title, and transaction name of the pertinent corporation (see Supreme Court Decision 90Nu10384 delivered on July 27, 1993).

In the same purport, the court below's decision that the disposition of this case based on the plaintiff's expenses omitted in the books and processed sales is based on the income calculated without properly reflecting the part that should be included in deductible expenses or excluded from gross income. Thus, the court below's decision that the disposition of this case is not unlawful is just and there is no error of law such as misunderstanding of legal principles as to

B. It is difficult to view that a corporation’s act of excessively reporting and paying corporate tax, based on the window dressing settlement, constitutes “when it pays property due to illegal cause” as stipulated in Article 746(a) of the Civil Act, and thus, the Plaintiff’s act of excessively paying corporate tax according to the window dressing settlement constitutes illegal cause under Article 746 of the Civil Act, and thus, the return thereof should be refused is without merit.

C. In order to apply the principle of trust and good faith to taxpayers, there is an objective contradictory behavior, the behavior was derived from the taxpayer's severe acts of worship, and the trust of the tax authority resulting therefrom should be worthy of protection (see Supreme Court Decision 98Du17968 delivered on November 26, 199). The application of the principle of trust and good faith to the tax entity law which has a strong legal nature under the principle of no taxation without law is allowed only when the need for specific trust protection is acknowledged even if the tax authority has a right of on-site investigation, as well as when the tax authority has a duty to investigate and impose tax on the substance. In light of the fact that the taxpayer bears the burden of proof as to the legality of the taxation disposition, it is difficult for the taxpayer to report an excessive amount of corporate tax and to claim the excessive amount of tax paid, and even if the tax authority has reported the violation of the principle of trust and good faith, it cannot be said that the tax authority has a duty to protect the tax entity's excessive amount of corporate tax.

In the same purport, the court below is justified in rejecting the defendant's assertion that the plaintiff's claim of this case was against the principle of good faith on the ground that it is difficult to view that it was committed against the principle of good faith to the extent of violating the principle of good faith, and there is no violation of law such as misunderstanding of legal principles

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae-sik (Presiding Justice)