Early High Court Decision 2017west 4883 ( October 27, 2018)

The lawsuit of this case is not unlawful because it was filed after the period for filing the lawsuit expires.

Since an employee of the plaintiff's representative of the plaintiff's appeal can be recognized as having received a notice of the decision of adjudication, and the lawsuit of this case was filed after the lapse of 90 days thereafter, the lawsuit of this case is unlawful.

Article 56 of the Framework Act on National Taxes concerning other Acts

2018Guhap83697 Such revocation as corporate tax, etc.

AA Corporation

Head of Sungbuk Tax Office

May 23, 2019

August 16, 2019

1. The instant lawsuit shall be dismissed.

2. Litigation costs shall be borne by the Plaintiff

Cheong-gu Office

Each corporate tax and value-added tax specified in the separate sheet as of January 2, 2017 that the Defendant issued against the Plaintiff, and each disposition of notice of change in income amount listed in the separate sheet as of January 16, 2017, shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a corporation established on June 29, 201 for the purpose of wholesale and retail business by O, etc.

B. From June 8, 2016 to November 26, 2016, the director of the final tax office conducted an integrated investigation of corporate tax for the Plaintiff from June 8, 2016 to November 26, 2016, and notified the Defendant of the result.

C. Accordingly, on January 2, 2017, the defendant added up KRW 0,000,000, total amount of corporate tax for the business year from 2012 to 2014, as shown in the attached list, to the plaintiff on January 2, 2017, on the ground that he/she falls under expenses not related to business or there is no evidence of expenditure (hereinafter referred to as the "disposition"), and on the ground that the above amount is unclear, the defendant issued a correction and notification of the total amount of KRW 00,00,000,000 in the value-added tax for the second period from 2012 to 2014 (hereinafter referred to as the "disposition of this case"), the above amount is deemed as unclear and disposed of as income by being recognized as representative DD, and on January 16, 2017, the disposition of this case should be combined with the notice of change in income amount (hereinafter referred to as the "disposition of this case").

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal on September 18, 2017 on April 12, 2017, but the Tax Tribunal dismissed the appeal on July 27, 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, Eul evidence 4 and 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment on the Defendant’s main defense

A. The defendant's main defense

The instant lawsuit is unlawful as it was filed after the lapse of 90 days from the date on which the Plaintiff received a notice of adjudication.

B. Relevant legal principles

A lawsuit seeking cancellation of a disposition imposing national taxes which is subject to the principle of mandatory transfer shall be instituted within 90 days from the date of receipt of a notice of decision on the request for examination or adjudgment (Article 56(2) and (3) of the Framework Act on National Taxes). Meanwhile, a claimant may appoint a certified tax accountant as his/her agent, and an agent may perform all acts concerning such request on behalf of the principal except withdrawal of the request (Article 59(1) and (4) of the same Act), in cases where a document is served by registered mail and where a document is not served by registered mail, the document may be served on the person to be served at the place of service as his/her employee, employee, or cohabitant (Article 10(4) of the same Act). Thus, the document shall be served on the person to be served at the place of service by registered mail (Article 10(4) of the same Act).

C. Determination

(1) According to the evidence evidence Nos. 2, 10, and 1 evidence Nos. 2, 10, and 1, it can be acknowledged that CCC, an employee of BB of the Plaintiff’s tax accountant BB, received the notification of the judgment on July 31, 2018, and it is apparent in the record that the Plaintiff filed the instant lawsuit on October 30, 2018, after the lapse of 90 days from the Plaintiff. Thus, the instant lawsuit is unlawful because it was filed after the lapse of the period for filing the lawsuit.

(2) As to this, the Plaintiff asked the Tax Tribunal of the date of service of the written decision and received a registration number on August 2, 2018, along with the reply that the date of service of the written decision, and sought the registration delivery information provided by the post office with the registration number. As a result, the Plaintiff stated that “BB (2017.00) on August 2, 2018 (200)” as “BB (2017.00) on the upper part of the details of service by mail (A. 2-2) as stated in the above reply, and that there was a reason that the Plaintiff could not be responsible for failing to comply with the filing period.

According to Gap evidence Nos. 2, 10 and Eul evidence Nos. 1, each of the "basic information column on the details of registration delivery of the above written decision", the "Tax Tribunal on July 30, 2018: 'BB (2017.00)', 'handling classification', 'delivery issuance', 'delivery issuance', 'delivery issuance', 'delivery issuance', 'delivery issuance' in the column of "delivery of delivery", 11:09 on July 31, 2018, 'B', 'BB' (2017.00): 0 on August 29, 2018; 'B' (200:0 on delivery certificate', 'delivery delivery certificate', '00 on August 29, 2018.

As alleged by the Plaintiff, the delivery date of the above registration delivery document: BB (2017.00) was written as of August 2, 2018, as it is acknowledged above, that the above registration delivery document is merely the date a post office issues a delivery certificate to the Tax Tribunal, and it is apparent that CCC, an employee of BB of the Plaintiff’s agent, received a notice of the decision on the trial, and there is no other evidence to support that the tax Tribunal notified the Plaintiff of the date of service of the decision on the trial to the Plaintiff on August 2, 2018. Therefore, the above assertion by the Plaintiff cannot be accepted.

3. Conclusion

Therefore, the lawsuit of this case is unlawful, and it is so decided as per Disposition by the assent of all participating Justices.