early 2010 Heavy0982 (Law No. 17, 2010)

Tax authorities are not obligated to examine whether they are tax-exempt or taxable business entities;

In light of the fact that there is no evidence that the public official in charge arbitrarily issued a business registration certificate for tax-free business operators, and that the taxpayer has not received any data to determine the content and scale of the business that the taxpayer will proceed in the future, there is no obligation for the defendant to examine whether the

2010Guhap4648 Disposition to revoke the imposition of value-added tax

Gyeong-gu

OO Head of the tax office

March 29, 2011

April 26, 2011

1. It is confirmed that the Defendant’s omission was unlawful in filing a claim for correction of the final return of value-added tax amounting to KRW 58,636,364, which the Plaintiff submitted to the Defendant on March 13, 2009.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Paragraph (1) and the Defendant’s disposition of imposition of value-added tax of KRW 55,715,340 against the Plaintiff on June 30, 2009 shall be revoked.

1. Details of the disposition;

A. On December 7, 2007, the Plaintiff filed an application for business registration with the Defendant for a tax-free entrepreneur with the address of “BB” business place, “CCC DD, EE Ri 53-16”, “construction”, and “construction and sales business”, and received a business registration certificate from the Defendant.

B. After the plaintiff became aware that the housing construction and sales business operated by the plaintiff is a taxable business operator under the Value-Added Tax Act, the plaintiff submitted to the defendant a report on discontinuance of the business as to the above business registration on January 22, 2009, and applied for a business registration again to the defendant on the same day. On the 23th of the same month, the date of opening the business was stated retroactively on December 7, 2007, and the remaining items were issued with the business registration certificate for the same general taxable person.

C. On February 20, 2009, the Plaintiff filed an application with the Defendant for an input tax deduction for the amount of two years in relation to the Plaintiff’s above business, and received a refund of the value-added tax of KRW 49,794,740 from the Defendant.

D. On March 13, 2009, the Plaintiff filed a final return on the value-added tax amounting to KRW 58,636,364 (hereinafter “instant request for correction”) with respect to the Plaintiff’s above business with respect to the Defendant, the Plaintiff filed a request for correction of KRW 271-6,158,182 in 207, and KRW 52,478,182 in 208.

E. As above, the Defendant, upon the Plaintiff’s request, deemed the value added tax for the second half-year period of 2008, which was purchased and refunded upon the Plaintiff’s request, as the input tax amount before the Plaintiff’s business registration

On June 30, 2009, the instant disposition imposed value-added tax of 55,715,340 won on the Plaintiff on the second term portion of 2008.

F. On March 10, 2010, the Plaintiff filed an appeal against the instant disposition, and received a decision of dismissal on August 17, 2010, and filed the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, 8-12, Eul evidence 1-3, 5, 9 and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) Confirmation of illegality of omission

The Defendant did not make any decision on the claim for correction of the instant case filed against the Plaintiff on March 13, 2009, and the Defendant’s omission was unlawful.

2) The illegality of the instant disposition

A) The Plaintiff was unaware of whether the Plaintiff’s business constitutes a taxable business as at the time of filing the initial application for business registration. The Defendant’s public official in charge voluntarily registered as a tax-free business operator and issued a business registration certificate. Even if the Plaintiff filed an application by entering the Plaintiff as a tax-free business operator, the Defendant did not have a duty to correct the Plaintiff’s business in the event that the Plaintiff’s business constitutes a taxable business. Therefore, the instant disposition that was conducted

B) The Defendant issued a business registration certificate for general taxable persons to the Plaintiff on December 7, 2007, when it issued the business registration certificate for general taxable persons, and issued the date of the commencement of the business to the Plaintiff by entering it as the first opening date of December 7, 2007, which was so trusted that the Plaintiff was registered retroactively on December 7, 2007, but the instant disposition was unlawful as violating the Plaintiff’s trust.

(b) relevant statutes;

It is as shown in the attached Form.

C. Determination

1) Determination as to the claim for confirmation of illegality of omission

Article 45-2(1) and (3) of the Framework Act on National Taxes provides that when there is any change in the payable tax amount, the taxpayer may request the head of the competent tax office to correct the payable tax amount, and the head of the tax office shall notify the result within two months.

The facts that the Plaintiff filed a request for correction of this case with the Defendant on March 13, 2009 are as seen earlier. Therefore, the Defendant, the head of the competent tax office, has the obligation to respond to the request. In full view of the overall purport of the pleadings in the statement Nos. 4-1 and 2, the Defendant may readily acknowledge the fact that the Defendant rendered a decision to dismiss the Plaintiff’s correction of this case. However, there is no evidence to acknowledge the fact that the Defendant notified the Plaintiff of the result of the Plaintiff’s request for correction of this case. Accordingly, omission for which the Defendant did not notify

2) Whether the instant disposition is lawful

A) Articles 5(1) and 17 of the Value-Added Tax Act and Article 7(1) and (8) of the Enforcement Decree of the said Act provide that an input tax amount before filing an application for registration of business shall not be deducted from the output tax amount, and where filing an application for registration of business, it shall be deemed that an application for registration was filed at

On January 22, 2009, the fact that the Plaintiff filed an application for the registration of business with respect to the business operated by the Plaintiff to the Defendant is as seen earlier. Thus, barring any special circumstance, barring any special circumstance, the Plaintiff’s two-year input tax amount prior to the registration of business shall be deemed as the input tax amount prior to the registration of business, and thus, the instant disposition that imposed the value-added tax

The plaintiff asserted that the public official in charge of the defendant, who received an application for business registration from the plaintiff, voluntarily stated the plaintiff's business as a duty-free business operator and issued a business registration certificate for the duty-free business operator to the plaintiff, but there is no evidence to acknowledge it. In addition, the plaintiff asserted that the defendant is a duty-free business operator when receiving an application for business registration, and whether the content of the application is a duty-free business operator, and if the tax business operator is a taxable business operator, he is obligated to register it as a taxable business operator. However, in light of the fact that the defendant in receipt of the application for business registration did not submit any data

B) The Defendant issued a business registration certificate to the Plaintiff on January 23, 2009, stating the date of opening the business as of December 7, 2007. However, this appears to have been issued within the meaning of confirming the continuity of the Plaintiff’s business by deeming the Plaintiff’s report on closure of business and an application for correction of business registration as an application for correction of business registration, and solely on the above circumstances, it cannot be said that the Defendant granted the Plaintiff the trust that the Plaintiff’s application for business registration for the general taxable person was made on December 7, 2007, and there is no other evidence to acknowledge the Plaintiff’s above assertion, and therefore, this part of the Plaintiff’s assertion

3. Conclusion

Therefore, the part of the plaintiff's claim of this case seeking the defendant's illegality of omission is justified, and the part of the claim seeking the revocation of the disposition imposing value-added tax is dismissed as it is without merit. It is so decided as per Disposition.