Suwon District Court-2014-Guhap-51594 (2015.07)

(Preliminary) If there is no justifiable reason, filing an administrative suit claiming the revocation of the taxation disposition without going through the pre-trial procedure is inappropriate.

(As in the judgment of the court of first instance, even if there is a defect that misleads the plaintiff, who is merely a formal shareholder of the plaintiff company, as an oligopolistic shareholder, the defect cannot be objectively seen as objectively and objectively, and thus, it cannot be deemed as void as a matter of course.

Article 39 of the Corporate Tax Act, Article 8(2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act

2015Nu52892 Invalidity of the imposition of value-added tax, etc.

EOS et al.1

O Head of tax office

July 7, 2015

July 8, 2016

August 19, 2016

1. All appeals filed by the plaintiffs are dismissed.

2. The lawsuit on the conjunctive claim of the Plaintiff, ○○, added at the trial, shall be dismissed.

3. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

The judgment of the first instance shall be revoked.

On December 3, 2013, the Defendant confirmed that the part on KRW 163,39,550 of the imposition disposition of value-added tax for the second period of KRW 327,908,940 for the second period of value-added tax for the year 2013 against ○○○○○ Co., Ltd. is null and void. In the first place, the Defendant’s collection disposition of KRW 163,39,550 for KRW 27,9,940 for the second period of value-added tax for the year 2013 against ○○○○○○ on January 9, 2014 is null and void. In addition, the part on KRW 163,99,50 among the collection disposition of KRW 27,90 for the second period of value-added tax for the year 2013 against ○○○ on January 9, 2014 is revoked.

1. Quotation of the reasons for the judgment of the first instance;

This judgment is based on the reasoning of the judgment of the court of first instance, except for dismissal or addition of the following matters, and thus, it is based on Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(1) On the second page, "The portion of the principal tax of KRW 324,116,77 of the payment notice of KRW 327,908,940 in the payment notice of KRW 327,90 in the payment notice of KRW 324,116,77 in the payment notice of KRW 327,940 is applicable to the collection disposition of the tax already determined by the return, and the portion of penalty tax of KRW

(2) On the 3rd side, the following shall be added:

"If a business operator reported the tax base of value-added tax and the amount of tax payable but did not pay the tax payable, and the tax authority issued a notice of tax payment along with additional tax paid, it shall be deemed a mixed disposition of collection and imposition and collection of additional tax (see Supreme Court Decision 91Nu13113, Apr. 28, 1992). In addition, in the acquisition tax adopting the method of tax payment, the tax authority shall be deemed to have determined the liability to pay acquisition tax by the taxpayer's report, and shall be deemed to have become final and conclusive, and shall be deemed as a collection disposition ordering the performance thereof, even if there is a defect in the taxpayer's report, it shall not be succeeded as it is to the subsequent disposition, unless the defect in the taxpayer's report does not constitute a ground for invalidation. The determination of whether the defect in the taxpayer's report constitutes the invalidity of the tax due to a significant and apparent reason shall be made by examining the purpose, meaning, function, and legal remedies for the defect in the return act, and by individually identifying the specific circumstances leading to the reporting act (see Supreme Court Decision 2005Du498.

As alleged earlier, the Plaintiff Company actually carried on all the business, and the Plaintiff Company only lent only its name to Kim○○, and thus, the Plaintiff Company’s return of value-added tax for the second period of 2013 was asserted to the effect that the defect is significant and apparent, and thus, it is examined as to this point.

(3) On the 4th page 9, the phrase "disposition of this case" shall be deemed to read "the act of reporting this case".

④ On the 4th page 10, the phrase “this cannot be viewed as null and void as a matter of course.” Accordingly, the instant disposition also becomes null and void on the premise that the instant reporting act is null and void as a matter of course.”

⑤ On the 4th page, the “instant disposition against Plaintiff Seo-○” in the 4th page is considered as the “Plaintiff’s primary claim (request for confirmation of nullity)”.

(6) On the fourth side, the following shall be added:

“Plaintiff ○○ asserts that there was no receipt of the notice of payment of the value-added tax in this case and that the appeal procedure, such as the administrative appeal, also did not have been notified. However, according to the description of evidence Nos. 3-2, 3, and 9-1 and 2 of the evidence Nos. 3-2, and the reference materials submitted by the Defendant on September 21, 2015 (the printed contents at the time of delivery of the notice of payment), the Defendant designated Plaintiff ○ on January 9, 2014 as the secondary taxpayer of the Plaintiff ○○○ Co., Ltd. on the same day, and sent the notice of payment of value-added tax for the second period of the second period of the value-added tax in 2013 on January 13, 2014, the said notice of payment can be recognized as having been written in the objection procedure as to filing an objection, a request for examination, or a request for adjudication.”

Finally, I will look at the plaintiff's preliminary claim (e.g., revocation claim) added in the trial.

Article 56 (2) of the Framework Act on National Taxes provides that an administrative litigation against an illegal disposition provided for in Article 55 shall not be filed without going through a request for examination or a request for adjudgment and a decision thereon pursuant to this Act, notwithstanding the provisions of Article 18 (1) (main sentence), (2) and (3) of the Administrative Litigation Act. In the case of a tax administration, two or more administrative dispositions for the same purpose are carried out in a phased and developmental process, and are related to each other, and the tax authority has changed the relevant taxation disposition while continuing the tax administrative litigation, and the same reason is common. In the case where several persons are to bear the same obligation through the same administrative disposition, the Commissioner of the National Tax Service and the Tax Tribunal provided the taxpayer with an opportunity to re-determine the basic facts and legal issues, and further, when there is a justifiable reason such as a taxpayer’s failure to file a request for revocation of the tax disposition without going through the preceding trial procedure, it is unlawful for the taxpayer to file a request for revocation of the tax disposition without going through the preceding trial procedure (see, e.g., Supreme Court Decision 21201201Du14).

There is no evidence to deem that the Plaintiff had the aforementioned justifiable cause with respect to the instant case. Therefore, the Plaintiff’s conjunctive claim part of the Plaintiff’s conjunctive claim is unlawful as it did not go through the pre-trial procedure.

2. Conclusion

Therefore, the plaintiff company's claim and the plaintiff's primary claim are all dismissed as it is without merit, and the plaintiff's conjunctive claim added in the trial is dismissed. The judgment of the court of first instance is just in conclusion, and the plaintiffs' appeal is dismissed, and the plaintiff's conjunctive claim added in the trial is dismissed. It is so decided as per Disposition by the court of first instance.