Cho High Court Decision 201Na0310 ( October 31, 2011)

The lawsuit of this case is not illegal because there is no direct and specific interest in the lawsuit.

With respect to a taxation disposition against a corporation designated as one of its secondary taxpayers, the plaintiff has an indirect interest, and there is no legal direct and specific interest in the plaintiff's lawsuit.

2011Guhap1646 Action to confirm the invalidity of national tax cancellation, such as objection to the adoption of a decision by the Tax Tribunal

Limited liability Company AA

Head of Chungcheong Tax Office

July 19, 2012

August 23, 2012

1. The instant lawsuit shall be dismissed.

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

The defendant imposed on AA industry on May 26, 2008, and collected at KRW 00 on September 8, 2009, and KRW 1.00 on May 26, 2008, and KRW 000 of the occasional value-added tax and surcharges for KRW 000 on May 26, 2008, and KRW 00 of the value-added tax at KRW 200 on May 26, 2006, and KRW 00 of the surcharge at KRW 200 on each of the above dispositions made on May 26, 200, and KRW 200 on each of the above changes made on May 26, 200, and KRW 20 on each of the above dispositions made on May 26, 200, and KRW 200 on each of the above changes made on May 26, 208.

1. Details of the disposition;

A. The Plaintiff was a corporation established on June 3, 2003 for the purpose of painting construction business, and the Plaintiff’s delinquent tax amount as of May 26, 2008, and (i) the Plaintiff’s delinquent tax amount as of May 26, 2008, and (ii) the Plaintiff’s delinquent tax amount of KRW 000 and its additional tax amount of KRW 00, which is part of the value-added tax for the first time of 2006, and ② the value-added tax amount of KRW 000 and its additional tax for the second time of 2006, and ③ the value-added tax amount of KRW 00 and its additional tax amount of KRW 00 and its additional tax for the second time of 207, and KRW 000 and its additional tax amount for the second time of 2006.

B. At the time of establishing the Plaintiff’s respective tax liability, HF (which served as the representative director from the time of the Plaintiff’s establishment to November 2, 201) owned 90% of the Plaintiff’s shares in oligopolistic shareholders, and at the same time controlled and operated the AA industry (hereinafter “AA industry”), and the Plaintiff did not fulfill each of the above tax liability, and the Defendant, on November 15, 2007 and April 18, 2008, HF designated 00 won as the Plaintiff’s secondary taxpayer, while HF designated 00 won and additional dues for 2000 won and additional dues for 200% for each of 200 years and additional dues for 200% for the reason that HF owned 50% or more of the Plaintiff’s shares in AA industry, and 00 won and additional dues for 20% for 20 years and 200% for the Plaintiff’s additional dues for 20% for 20 years and 200% for each of the above A industry.

C. The Defendant is liable to pay the AA industry under each of the instant dispositions, and on June 9, 2008.

On September 8, 2009, the AA industry seized OO Ri 00, 463 square meters, and four parcels, etc. owned by the AA industry, and on September 8, 2009, the AA industry, upon each of the instant dispositions, paid 00 won (in total, 00 won of value-added tax for the first time in 2006 and its additional 00 won, ② 000 won of value-added tax for the second time in 2006, and ③ 000 won of the final value-added tax for the first time in 2007 and its additional 00 won, and the No.400 won of value-added tax for the second time in 207, and the amount claimed by the Defendant for the second time in 2006.

[Based on Recognition] The identification of the facts without dispute, evidence 10, evidence 13, evidence 15 through evidence 17, evidence 19, evidence 20, evidence 39 through evidence 41, and evidence 43 (if any, including the number), and the whole purport of the pleading

2. Summary of the cause of the claim;

Each tax amount described in paragraph 1(a) borne by the Plaintiff is paid in full by the Plaintiff or appropriated for refund, and all of the Plaintiff’s tax liability is extinguished, and the Defendant designated HF and AA industry as a secondary taxpayer with respect to the Plaintiff’s tax liability that did not exist, and imposed each of the instant tax dispositions and compulsory collection accordingly against AA industry, and each of the instant tax dispositions is null and void as the defect is significant and obvious.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination on the defense prior to the merits

A. Defendant’s defense prior to the merits

The defendant, and the other party to each of the dispositions in this case, are the AA industry that is not the plaintiff but the second taxpayer, and the plaintiff has no standing to sue to seek confirmation of invalidity of each disposition in this case, and therefore the lawsuit in this case is unlawful

B. Determination

1) Even if a third party who is not the other party to an administrative disposition is not the direct party, where the interests protected by law are infringed by the pertinent administrative disposition, the administrative lawsuit seeking the cancellation or nullity of the disposition is entitled to be judged by its propriety, and the legal interests here refer to the cases where there are individual, direct and physical interests protected by the relevant administrative disposition and relevant laws and regulations (see, e.g., Supreme Court Decision 2006Du14001, Dec. 22, 2006).

2) We look at the instant case, and the Plaintiff filed the instant lawsuit seeking confirmation of invalidity of each of the instant dispositions with respect to the Plaintiff’s tax dispositions against the Plaintiff, and against the Plaintiff’s secondary taxpayer designated as the Plaintiff. Although each of the instant disposition is premised on the existence of the Plaintiff’s tax liability, it is closely related to the Plaintiff’s duty to pay taxes, the validity of each of the instant disposition is limited to the A industry, and it does not affect the existence or scope of the Plaintiff’s duty to pay taxes, and it is sufficient to file a lawsuit against the Plaintiff regarding the disposition on imposition of the Plaintiff’s own. In light of the above, it is reasonable to deem that the Plaintiff, on behalf of the A industry, has a de facto indirect interest in each of the instant dispositions. Accordingly, the Plaintiff has a direct and specific interest in the instant lawsuit, and the instant lawsuit is unlawful, since the Plaintiff has no direct and specific interest in the instant disposition.

5. Conclusion

If so, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.