Changwon District Court 2014Guhap20412 ( December 12, 2014)

As a result of re-audit of objection, additional notice does not constitute duplicate investigation.

(As in the first instance trial), even if the results of the decision on re-audit were to be notified more than the initial tax amount by the decision on re-audit, it does not constitute double investigation, prohibition of disadvantageous changes, etc.

Article 79 of the Framework Act on National Taxes

2015Nu10134. Revocation of disposition of imposing corporate tax, etc.

Thai A Co., Ltd.

00. Head of tax office

Changwon District Court Decision 2014Guhap20412 Decided December 12, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The Defendant’s corporate tax of KRW 000,000,000 on October 2, 2012 shall be revoked.

(0,000,000 for year 2007,000,000 for year 2008,000 for year 2008,00,000 for year 2009;

Disposition of imposition of KRW 0,00,00 for the year 2010, KRW 000 for the year 201,000 for the year 201, and (ii) October 00, 2013

(3) The disposition of imposing corporate tax of KRW 00,000,000 for the year 2007, and (3) the year 2007 for the year 2007

(4) 00,000,000 won for the year 2011 on October 0, 2013

(5) Notice of change in income amount, (5) KRW 00,000,000 for corporate tax on October 0, 2013 (00,000 for year 208);

00,000,000 for the year 2009,000,000 for the year 2010,000 for the year 2011, 00,000 for the year 2011

(6) Disposition of imposition, (6) 00,000,000 on October 0, 2013 (00,000,000 for the year 2008, and 2009

The notification of change in income amount of KRW 00,000, KRW 00,000 for the year 2010, and KRW 00,000 for the year 201 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court's explanation concerning this case is as follows, except for the addition of the "Acts and subordinate statutes added at the trial" to the "attached Acts and subordinate statutes" in the attached Form 16 of the judgment of the court of first instance, the reasons for this Court's explanation shall be as stated in the corresponding part of the judgment of the court of first instance. Thus, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act. [This part]

6) Determination on the assertion of procedural violation, such as a pre-assessment review request

In order for a taxation disposition to be deemed illegal due to a procedural defect, the procedure required to pass through under the relevant statutes has been omitted or insufficient, and the procedure must be essential to calculate the correct amount of tax or remedy the taxpayer's rights. The taxation disposition cannot be deemed unlawful due to the procedural defect merely because there are no grounds under the relevant statutes or voluntary procedures that do not affect the calculation of the amount of tax or the relief of the taxpayer's rights are omitted or insufficient. Whether the procedure falls under the procedure necessary for the relief of the taxpayer's rights should be determined by comprehensively taking into account the content of the relevant statutes and the purpose of legislation, the impact on the taxpayer, etc.

Article 81-10 of the Framework Act on National Taxes was newly enacted on August 31, 199 by Act No. 5993 (Article 81-10). The pre-assessment review system provides that taxpayers who are dissatisfied with the pre-assessment review prior to the imposition of a tax shall be notified of the details to be taxed in advance and request a lawful review of the taxpayer's rights at the pre-assessment stage of the taxation. The system is established in order to enhance the effectiveness of taxpayer's rights protection at the pre-assessment stage of the national tax, and is stipulated in the National Tax Service's instructions (Article 1237) on April 31, 1999. Article 81-15(1) of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 251 of the Framework Act on National Taxes). This provision provides for the pre-assessment review of the tax amount before being notified to the Commissioner of the National Tax Service (Article 81-12 of the Framework Act on National Taxes).

In addition, Article 3 (1) of the former Regulations on the Handling of Administrative Affairs on Pre-assessment Review (amended by the National Tax Service Directive No. 2003 on July 1, 2013) provides that "when imposing tax on the director of a regional tax office, the director of a regional tax office, or the director of a national tax office according to the results of audit of duties under subparagraph 2,

When imposing a tax after taking measures for local correction (Article 3), when there is an amount of tax to be notified of tax according to the results of on-site verification (Article 4), when imposing a tax on a person other than the relevant taxpayer who is confirmed in the field investigation (Article 5), and when imposing a tax in accordance with the results of handling various taxation data (Article 6), other than cases under subparagraphs 1 through 5) [Article 3(2) provides that "in cases where the amount of tax to be notified of tax in accordance with the results of handling various taxation data (Article 11 of the Framework Act on National Taxes is not less than 3 million won (Article 203 of the revised Act (hereinafter referred to as "former provisions on pre-assessment review (Article 203 of the National Tax Service Directive)" includes "where the tax base, estimated amount of tax, etc. is more than 1 million won" and Article 11(2) provides that "in cases where a taxpayer falls under the grounds for service by publication (Article 11) and does not have any address or domicile in Korea, any notification of taxation may be omitted."

In full view of the following circumstances, it is difficult to deem that there is an error in the procedure of taxation taxation even if the tax assessment was conducted by omitting the notice of pre-announcement of taxation, by taking into account the content and purpose of legislation of the relevant laws and regulations.

(1) Although the notice of pre-assessment is mentioned in the Framework Act on National Taxes and the former Enforcement Decree of the Framework Act on National Taxes, it is merely mentioned in the provisions related to pre-assessment review in the purport that the subject matter of pre-assessment review, the procedure constituting such premise, and the starting point of the period of application, and there is no specific requirement and procedure that the tax authority should give notice of pre-assessment, and it is only defined in the former Regulations on Pre-assessment Review

(2) The former pre-assessment review regulation is the so-called administrative rule issued by the National Tax Service’s authority to determine the guidelines for handling affairs or the standards for interpreting and applying statutes to subordinate administrative agencies. Since such regulations are prescribed without being delegated by statutes, it cannot be deemed that they have an external binding legal order, and it is reasonable to deem that they have an effect only within an administrative organization (see, e.g., Supreme Court Decision 2006Du3742,3759, Mar. 27, 2008). Therefore, it is difficult to deem that the pre-announcement of taxation is the procedure specifically guaranteed by statutes to taxpayers.

(3) Even in accordance with the former pre-assessment review regulations, it is not necessary to give notice to all the taxation dispositions. If the period for exclusion of the imposition of tax is imminent, it is not an essential premise for the taxation disposition (see Supreme Court Decision 2010Du19713, Oct. 11, 2012). (4) Even if a taxpayer was unable to obtain an opportunity to file a pre-assessment review on the grounds that the taxpayer did not obtain an opportunity to file a pre-assessment review due to the failure to do so, it is difficult to view that the pre-assessment notice as an ex post facto remedy procedure has to be necessarily required in terms of guaranteeing substantial security of the pre-assessment review. Therefore, even if the Plaintiff did not receive a pre-assessment notice, it cannot be said that there is any error in the procedure of the instant additional disposition on the ground that there is no other premise by the Plaintiff.

2. Conclusion

If so, the plaintiff's claim is without merit, and the judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.