Early High Court Decision 201J 1962 ( October 30, 2011)

Since 90 days have passed since a notice of tax payment was received, it shall be dismissed without going through legitimate pre-trial procedures.

Since 90 days have passed since a tax notice was received and filed an objection, it cannot be said that the tax disposition had gone through legitimate pre-trial procedures, and thus, the instant lawsuit was dismissed as unlawful without going through legitimate pre-trial procedures.

Article 55 of the Framework Act on National Taxes

2011Revocation of revocation of the imposition of value-added tax;

XX

Deputy Director of the Tax Office

October 19, 2011

November 2, 2011

1. The instant lawsuit shall be dismissed.

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

On December 8, 2010, the Defendant revoked each disposition of imposition of value-added tax of KRW 66,874,320 and surcharge of KRW 2,006,220 for the second period of value-added tax for the Plaintiff on December 8, 2009 (the statement in the complaint is obvious that it is a clerical error).

1. Details of the disposition;

A. On February 23, 2006, the Plaintiff entered into a sales contract with Nonparty ○○ Terminal Co., Ltd. with respect to the fourth 706, Dong-dong, Seocheon-gu, Seoul Special Metropolitan City (hereinafter “instant commercial building office”). On March 3, 2006, the Plaintiff applied for the registration of real estate rental business with the place of business of the instant commercial building office, and received a refund of KRW 54,103,890 in total value-added tax on the input tax amount from the first 1st to the second 2nd 2007.

B. However, around September 8, 2009, the Plaintiff cancelled the sales contract for the instant commercial office and the instant commercial office Nos. 000 and 000. The Plaintiff filed a lawsuit against the Incheon District Court Branch Branch Decision 2008Gahap8477 Decided December 18, 2009 against the ○○ Terminal Co., Ltd. for the claim for the refund of the purchase price, and the said judgment became final and conclusive as it is.

C. Meanwhile, the Defendant: (a) started a tax investigation after the Plaintiff received value-added tax and confirmed that the sales contract of the instant commercial office was cancelled as above; and (b) issued the instant disposition on December 8, 2010 to rectify and impose the value-added tax amounting to KRW 66,874,320 (including KRW 12,770,430 as an additional tax, and KRW 2,006,220 as an additional tax in the written complaint) as value-added tax for the second period for 2009 (including KRW 12,770,430 as an additional tax and KRW 2,20 as an additional tax imposed by the Plaintiff upon the payment deadline of the instant disposition); and (c) the notice of tax payment (hereinafter referred to as “instant tax payment notice”) was served on the Plaintiff on December 10, 2010.

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an objection against the Defendant on March 31, 201, but was dismissed on April 27, 2011, and again filed an appeal with the Tax Tribunal, but the appeal was dismissed on June 30, 201.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 4 (including each number), Eul evidence 1 to 6, the purport of the whole pleadings

2. Determination prior to the merits

On the ground that the disposition of this case was unlawful, the defendant asserted that the disposition of this case was unlawful, and the lawsuit of this case was filed without lawful pre-trial procedure, and thus, examined.

Article 55 (1) of the Framework Act on National Taxes provides that "any person whose rights or interests are infringed by this Act or any other disposition that is illegal or unreasonable, or because he/she has not received a necessary disposition, may request the cancellation or modification of such disposition or request a necessary disposition." Article 56 (2) of the same Act provides that in order to seek the cancellation of such disposition, unlike the voluntary transfer principle of administrative appeals applicable to general administrative litigation, procedures for a request for examination or adjudgment, etc. under this Act shall be followed. In accordance with Articles 61 (1) and 68 (1) of the Framework Act on National Taxes, the above request for examination or adjudgment, etc. shall be filed within 90 days from the date (the date of receipt when a notice of disposition is received) on which he/she becomes aware of such disposition (the date of receipt when a notice of disposition is received) pursuant to Articles 66 (6) and 61 (1) of the Framework Act on National Taxes. An objection shall be filed within 90 days from the date (the date of receipt when a notice of disposition is received).

According to the above facts, since the plaintiff received the notice of tax payment of this case on December 10, 2010 and raised an objection 90 days thereafter, it cannot be deemed that the plaintiff had gone through legitimate pre-trial procedure on the disposition of this case. Therefore, the lawsuit of this case is unlawful because it did not go through legitimate pre-trial procedure (the plaintiff asserted that the delivery of the notice of tax payment of this case is invalid because the defendant did not deliver the notice prior to the disposition of this case, but there is no ground to view that the defendant must give the notice prior to the delivery of the notice of tax payment of this case. Thus, the above argument is without merit).

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.