There is a burden of proof for a person who asserts the invalidity of an administrative disposition.

The defects existing in the preceding disposition should not be succeeded to the subsequent disposition, unless they are the grounds for invalidation, and the fact that there are illegal grounds for invalidation of the administrative disposition is insufficient, and the defect should be significant and obvious.

Seoul Administrative Court-2014-Gu Partnership-1001

○ ○

○ Head of tax office

oly 24, 2014

November 29, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On April 18, 2011, the defendant confirmed that a seizure disposition made by the plaintiff on April 18, 201 ** 3,500 shares he owns against Lebz and its rights are null and void.

1. Details of the disposition;

A. In around 196 and 1997, the Plaintiff was registered as a business operator who runs a new wholesale business under the trade name of Seongbuk-gu Seoul Metropolitan Government ○○dong **** the collection of collection (hereinafter referred to as the “instant business”). The instant business establishment was closed on June 30, 1997.

B. The defendant, on April 18, 201, entered the following list in relation to the plaintiff in this case's workplace:

As a disposition for arrears to collect consolidated income tax and value-added tax (hereinafter referred to as "tax assessment of this case").

** The Plaintiff’s shares 3,500 shares and all rights incidental thereto held by the Plaintiff against Lebts

The attachment was made (hereinafter referred to as the "disposition of this case").

List of votes

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1, 2 (including each number, hereinafter the same

C) Each entry and the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful due to the following reasons, and its defect is serious and clear and invalid.

(i) the first argument;

The instant workplace is a new wholesale business entity operated from January 1, 1995, and the Plaintiff entered the instant workplace at the beginning of 1995. On April 1996, the change required the Plaintiff to lend his name as the Plaintiff is unable to file an application for business registration, and accordingly, the certificate of personal seal impression, resident registration, identification card, etc. was requested. While the Plaintiff first refused the request of the changeA, the Plaintiff first lent his name to the change AA to the crisis that the continued request of the changeA, but the Plaintiff could retire from the workplace if he did not comply therewith. Ultimately, the instant workplace is merely a business entity operated by the changeA, and the Plaintiff is merely a name of the Plaintiff, and the instant disposition based on the premise that the Plaintiff acquired business income while operating the instant workplace is in violation of the principle of substantial taxation.

(ii) the second argument;

The Plaintiff did not receive a tax payment notice regarding the instant taxation disposition from the Defendant. Since the instant taxation disposition, which was the preceding disposition, was conducted without a legitimate tax payment notice, is null and void, the instant disposition, which is the subsequent disposition, is null and void as a matter of course.

(iii) the third assertion;

According to Article 26-2 (1) 3 of the Framework Act on National Taxes, national taxes cannot be imposed after five years from the date on which they can be imposed. According to Article 12-3 (1) 1 of the Enforcement Decree of the Framework Act on National Taxes, the date on which national taxes can be imposed shall be the date on which the tax base and amount of national taxes are the date following the due date of the submission of the tax base and amount of national taxes. However, in this case, the defendant imposed a global income tax of 3,152,70 won on the plaintiff on August 5, 1997, which is the date of notification of global income tax of 1996, the imposition of value-added tax of 7,82,380 won on global income of 196, the imposition and collection period of value-added tax of 18,15,770 won on global income of 196, the imposition and collection period of value-added tax on global income of 197, the imposition and collection period of value-added tax of 198.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The director of the Incheon Tax Office on May 13, 2001 under the premise that the Plaintiff is the business operator of the instant workplace.

A notice of tax payment of KRW 5,471,220 of global income tax for 54,712,220 as well as resident tax for 5,471,220 of global income tax for 54,71,220 and 5,471,220, which is the Plaintiff’s domicile, was served by registered mail, to ○○ Dong, Nam-gu, Incheon. On November 11, 2002, the remaining head of Incheon Metropolitan City notified the Plaintiff of details related to the imposition of income tax and income tax for 5,471,220,220, and issued a notice of tax payment imposing KRW 1,389,610, which shall be imposed on the Plaintiff. On October 23, 2003, the Plaintiff filed an appeal against the remaining head of the Incheon District Court against the Plaintiff on November 11, 2002, which became final and conclusive on the ground that the Plaintiff’s appeal was not filed by the court below.

○ Whether a tax notice was served on May 13, 2001

According to evidence, even though the notice of tax payment issued on May 13, 2001 under the name of the director of the Incheon District Tax Office is deemed to have not been returned by registered mail 598-35, Nam-gu, Incheon District Tax Office at the time of the plaintiff's domicile, it cannot be presumed that the notice of tax payment was served on the plaintiff merely on the ground that the plaintiff had not been returned, in light of the situation where the plaintiff had moved to his domicile from time to time and whether he received the above tax payment notice

In such a case, the fact that the notice of tax payment has arrived at the Plaintiff should be proved by the Defendant (Supreme Court Decision 97Nu8977 delivered on February 13, 1998). However, since the Defendant did not present any evidence to acknowledge it, it should be deemed that the first disposition of resident tax was taken against the Plaintiff only when the notice of tax payment was served on the Plaintiff.

Whether the disposition of imposition of KRW 5,471,220 and additional dues of KRW 1,389,610, which is to be imposed on November 11, 2002, violates the substance over form principle.

According to the evidence submitted by the plaintiff, at around 1996, the plaintiff entered the place of business of this case as an employee at the time of the death of 24 years of age, and resided in the early room in the place where the above place of business is located. After the closure of business of the above place of business on June 1997, the director of the Incheon District Tax Office recognized that the income tax for the year 1996 imposed on the plaintiff on May 13, 2001 was disposed of in accordance with the National Tax Collection Act on the ground that there was no property to be seized at the end of 2001, and it appears that the young youth of 24 years of age who did not have any property to be succeeded was operated by the young youth of this case, the actual manager of the business of this case at the time of 1996, and the plaintiff seems to have been merely a nominal title holder of the above place of business.

2) In order to collect the instant taxation on November 1, 2001, the Defendant seized the credit purchase amount that the Plaintiff has to receive from *****, and thereafter, seized the claims held by the Plaintiff on October 6, 2004, October 26, 2004, October 28, 2004, and November 3, 2004.

3) On September 12, 2002, the value-added tax for the first term portion of the year 1997 against the Plaintiff was paid in KRW 3,424,780 on September 12, 2002. In this regard, the recipient code column of the “the first term of receipt by each taxpayer” (Evidence B No. 4) includes the “principal” where the taxpayer directly visits the tax office to pay it or appropriated it through the attached property.

[Ground of recognition] Facts without dispute, Gap evidence No. 3, Eul evidence No. 3, the purport of the whole pleadings

D. Determination

1) As to the first argument

A) In a case where an independent act was conducted by phase for a certain administrative purpose, the defect existing in the preceding disposition is insufficient merely because it does not succeed to the subsequent disposition, unless it is the reason for invalidation, and there is an unlawful reason for the subsequent disposition to be invalidated by an administrative disposition (see, e.g., Supreme Court Decision 88Nu12110, Jul. 11, 1989). In addition, in a case where there are objective circumstances that make it possible to believe that a certain legal relation or fact which is not subject to taxation is subject to taxation is subject to taxation, if it can only be identified after an accurate investigation of the facts, whether it is subject to taxation can be said that it is apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact of taxation is subject to taxation as a matter of course (see, e.g., Supreme Court Decisions 88Nu1210, Jul. 11, 1989; 201Du7268, Sept. 4, 2002).

B) On the other hand, even if the Plaintiff lent the name to the changed A, as alleged by the Plaintiff, whether the Plaintiff is merely the nominal name holder or not, can only be clarified when investigating the facts. Thus, the instant taxation that the Defendant trusted the Plaintiff, a nominal owner, as the business operator of the instant business establishment, cannot be deemed to be null and void as a matter of course, and the instant disposition in accordance with the instant taxation is null and void. Accordingly, the Plaintiff’s assertion on this part is without merit.

2) As to the second argument

On the other hand, in the administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the invalidity of such administrative disposition, the plaintiff is liable to assert and prove the grounds for invalidity of the administrative disposition (see, e.g., Supreme Court Decisions 9Du11851, Mar. 23, 200; 2009Du3460, May 13, 2010). The notice of tax payment recognized to have not been served on the plaintiff in the above Incheon District Court 2003Guhap3523, May 13, 2001 is related to the imposition of global income tax for 1996, which was made on May 13, 2001. Thus, it is insufficient to find that the above judgment alone did not have been served on the plaintiff, and there is no other evidence to support that the plaintiff failed to receive the notice of tax payment on the taxation disposition of this case. Thus, this part of the plaintiff's remaining grounds for appeal are without merit.

3) As to the third argument

A) The Plaintiff asserts that the instant disposition was null and void since the exclusion period for imposition of global income tax and value-added tax has expired. Even based on the Plaintiff’s assertion, the instant disposition was made within the exclusion period for imposition under Article 26-2(1)3 of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter the same). Thus, the Plaintiff’s assertion on this portion is without merit.

B) Even if the Plaintiff’s assertion on this part is made after the expiration of the extinctive prescription against the right to collect the national tax, the extinctive prescription expires unless the State’s right to collect the national tax is exercised for five years from the time it can be exercised, but the above extinctive prescription is suspended due to the seizure. As seen earlier, the Defendant seized the Plaintiff’s credit purchase claim that should be paid from the Korea New Public Co., Ltd. for the collection of the instant taxation on November 1, 2001, and thereafter, on October 6, 2004 and October 26, 2004, 2004; and on November 3, 2004, 204, the Plaintiff’s claim was seized, and thus, the extinctive prescription against the Defendant’s right to collect the national tax was interrupted, and the Plaintiff’s claim that the above disposition of seizure was not affected after the lapse of five years from the Plaintiff’s claim that the above disposition of seizure was not affected (the Plaintiff’s claim that the above disposition of seizure was not affected by the above.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.