2012 Middle 3141 (Law No. 28, 2012)

If a request for a trial is illegal due to the lapse of the period for filing a lawsuit, such administrative litigation shall not be deemed to have gone through a necessary transfer procedure as provided by the Framework Act on National Taxes.

If the administrative litigation is illegal due to the necessity of review or a request for judgment under the Framework Act on National Taxes, and the period for filing a lawsuit is to expire, etc., the administrative litigation is not deemed to have undergone the necessary transfer procedure under the Framework Act on National Taxes, and it is illegal.

Article 56 (2) of the Framework Act on National Taxes

2012 Disposition of revocation of Disposition of Imposition of Value-Added Tax, etc.

LAA

1. Class II Head of the tax office of North Korea;

3. The head of Gyeyang-gu Incheon Metropolitan City redB of the litigation performer;

August 30, 2013

October 11, 2013

1. All of the claims for revocation of the imposition of value-added tax and global income tax in the instant lawsuit are dismissed.

2. All remaining claims of the Plaintiff are dismissed.

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

Cheong-gu Office

1. On April 2, 2012, the head of each tax office revokes the imposition of value-added tax for the first term portion of 2008 against the Plaintiff, the first term portion of 2008, the second term portion of 2008, the OOOO of value-added tax for the second term portion of 209, the second term amount of 2009, the OOOO of value-added tax for the second term of 2009, the OOO of value-added tax for the first term of 2010, the OO of value-added tax for the second term of 2010, and the OOO of value-added tax for the second term of 2010.

2. The imposition of global income tax for the Plaintiff on April 9, 2012 by the director of the tax office North Korea shall be revoked, respectively, the imposition of global income tax for the year 2008, global income tax for the year 2009, global income tax for the global income tax for the year 2009, and global income tax for the year 2010.

3. On April 9, 2012, the head of Gyeyang-gu Incheon Metropolitan City issued a disposition of imposition by the head of the local income tax office on global income tax for the Plaintiff for the year 2008, on global income tax for the global income tax for the year 2009, on global income tax for the global income tax for the year 2009, and on global income tax for the global income tax for the year 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a person who has traded precious metals in the name of "CC distribution" in the OO-gu O-dong 103 O-dong, O-dong 103.

B. As a result of the investigation conducted by the Plaintiff, the director of the tax office of Sejong District did not receive the purchase tax account statement even if the Plaintiff purchased the present time equivalent to the value of supply from January 1, 2008 to December 30, 2010, and the sales tax invoice was not issued even if the Plaintiff sold the present time equivalent to the value of supply OOO, and on April 2, 2012, the head of the tax office imposed the Plaintiff the disposition of imposition of the value-added tax for the first period of 2008, the value-added tax OOOO for the second period of 2008, the value-added tax OO for the second period of 2009, the value-added tax OOO for the second period of 209, the value-added tax OOO for the second period of 209, the value-added tax OOO for the first year of 2010, and the value-added tax 20O for the second period of 20.

C. On April 9, 2012, upon receipt of the above taxation data from the head of the defendant's branch office, the head of the defendant's North Incheon District Tax Office imposed a disposition imposing the plaintiff the global income tax for the year 2008, the global income tax for the year 2009, the global income tax for the year 2009, and the global income tax for the year 2010 (hereinafter "instant disposition imposing global income tax"). On April 9, 2012, the head of the defendant's Gyeyang-gu Incheon Metropolitan City imposed a disposition imposing the plaintiff the global income tax for the global income tax for the year 2008, the local income tax for the global income tax for the global income tax for the year 2009, the local income tax for the global income tax for the global income tax for the year 2009, the local income tax for the global income tax for the global income tax for the year 2010 (hereinafter "instant disposition imposing local income tax").

D. On July 2, 2012, the Plaintiff was dissatisfied with the instant disposition of imposition of value-added tax and global income tax, and filed a request with the Tax Tribunal for a trial on July 2, 2012, but the said request was dismissed on September 28, 2012. On July 3, 2012, the Plaintiff filed a request with the Tax Tribunal for a trial on the instant disposition of imposition of local income tax, but the said request was dismissed on September 28, 2012.

[Based on Recognition] Facts without dispute, Gap evidence 1 through 7 (including each number; hereinafter the same shall apply), Eul evidence 1, Eul evidence 1, Eul evidence 1, Eul evidence 1, Eul evidence 1 and 3, the purport of the whole pleadings

2. Whether the part of the instant lawsuit seeking revocation of the imposition of value-added tax and global income tax is legitimate

ex officio, we examine the legitimacy of the part seeking revocation of imposition of value-added tax and global income tax in the lawsuit of this case.

Article 56 (2) of the Framework Act on National Taxes provides that an administrative litigation against a disposition under tax-related Acts shall not be filed unless a request for examination or adjudgment and a decision thereon is made. Thus, unlike the discretionary transfer principle of administrative litigation that applies to general administrative litigation, an administrative litigation seeking a revocation of a disposition is subject to the requisite transfer principle that must undergo a request for examination or adjudgment as prescribed by the Framework Act on National Taxes. In this case, a request for examination or adjudgment is legitimate. Thus, if a request for examination or adjudgment is unlawful due to the lapse of the filing period, it cannot be deemed that such administrative litigation has undergone the necessary transfer procedure as prescribed by the Framework Act on National Taxes (see Supreme Court Decision 90Nu8091, Jun. 25, 1991).

On July 2, 2012, the Plaintiff was dissatisfied with the disposition of imposition of value-added tax and global income tax in this case and filed a petition for a trial with the Tax Tribunal on July 2, 2012. However, according to the respective evidence Nos. 4 through 6, the Tax Tribunal requested correction on September 5, 2012 on the ground that “the Plaintiff was not specifically indicated in the grounds for objection to the tax appeal, and no evidentiary materials are attached thereto,” but it is recognized that the Plaintiff dismissed the said claim on September 28, 2012 because the Plaintiff did not correct it within the period for correction. Therefore, the part seeking the revocation of the disposition of imposition of value-added tax and global income tax in this case is unlawful without due process of the preceding trial.

On the other hand, the plaintiff specifically stated the reasons for objection in the tax appeal, and the Tax Tribunal did not forward to the plaintiff a duplicate of the reply by the chief of the tax office and the North Incheon District Tax Tribunal, so the rejection decision by the Tax Tribunal is unlawful. However, the plaintiff stated the reasons for objection in the written appeal as "unlawful act such as calculation of tax base", "unlawful act such as calculation of global income tax base and amount of tax", and "unlawful act in calculating the tax base and amount of value-added tax which serve as the basis for calculation of global income tax base and amount of tax". The plaintiff cannot be deemed to have specified the reasons for objection against the tax disposition in the written appeal. In addition, the Tax Tribunal appears to have prepared a notice attached to the written appeal by the chief of the tax office, and the plaintiff did not assert that the plaintiff failed to receive a duplicate of the written response while submitting the written response to the Tax Tribunal. Therefore, it is reasonable to deem that the

3. Whether the imposition of local income tax of this case is legitimate

A. The plaintiff's assertion

The head of the tax office calculated the value-added tax base of this case on the basis of the transaction details of the account in the name of the Plaintiff and the Plaintiff’s wife (hereinafter “the account in this case”). The transaction details of the account in this case include a number of transaction details unrelated to the business, and the above defendant estimated sales based on the amount of the account not the amount of the account in this case, so the disposition imposing the value-added tax of this case is an unlawful disposition for which the calculation of the tax base is erroneous. Therefore, the disposition imposing the local income tax of this case based on the disposition imposing the value-added tax of this case should

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) From January 1, 2008 to December 31, 2010, approximately KRW OOOO (pre-paid KRW OOO) was deposited in the instant account, and approximately KRW OOOO (pre-paid KRW OO) was deposited in the instant account.

2) In the course of the tax investigation, the Plaintiff made a statement to the effect that “the Plaintiff only purchased or sold gold with the precious metal only, and that there was no fact that it purchased or sold gold, and there was no evidence to this effect.” Meanwhile, when the investigator presented the details of the transaction in the instant account, the Plaintiff stated to the effect that “the Plaintiff was granted a loan to the subcontractor and there was no evidence to this effect.”

3) Of the withdrawals of the instant account, approximately KRW OOO was remitted to the gold bank business entity.

4) The MaximumG, the spouse of the EE Release representative KimF, who traded with the Plaintiff, stated to the effect that “the Plaintiff purchased goods from paper and sold goods in Incheon and Busan, and only sold goods in cash.”

[Reasons for Recognition] Facts without dispute, entry Eul in the evidence of Nos. 2 through 6, the purport of the whole pleadings

D. Determination

1) Article 21(1)1 of the former Value-Added Tax Act (amended by Act No. 10409, Dec. 27, 2010; hereinafter referred to as the "former Value-Added Tax Act") provides that "where an entrepreneur fails to file a final return, the competent tax office shall investigate and determine the tax base of value-added tax for the taxable period and the amount of tax payable for the taxable period, and the main sentence of Article 21(2) provides that "where the competent tax office determines the tax base and the amount of tax payable, the tax base and the amount of tax payable shall be based on the tax invoice, account book, and other supporting documents." Article 21(1)1 of the former Value-Added Tax Act and Article 69(1)4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22578, Dec. 30, 2010; hereinafter referred to as the "former Enforcement Decree of the Value-Added Tax Act") provides that "in the absence of tax invoice, account, account book, or other supporting ratio of gross profits for each type of business."

In full view of the aforementioned provisions, the tax base of value-added tax and the amount of tax should be based on the tax invoice, account book, and other supporting documents in accordance with the principle of base taxation. Thus, in cases where the tax office finds that the tax invoice, account book, and other supporting documents submitted by the taxpayer are not reliable when it issues the tax base and the amount of tax, it shall point out the illegality and make a field investigation, and even if it is based on such data, it shall make a decision on the additional investigation only when it is impossible to determine the tax base and the amount of tax, and even if it is impossible to do so, the tax disposition by the decision on the additional investigation without taking such procedures is unlawful as it goes against the requirements of the additional taxation. However, in light of the fact that the reasons for taking such procedures are exceptionally permitted when the decision on the additional investigation cannot be made on the spot basis of the principle of base taxation, the tax office did not take such procedures until it is evident that the tax base and the amount of tax can not be determined even if the tax base and the amount of tax cannot be determined on the spot investigation.

2) We examine the following circumstances, i.e., ① OO's deposit with the instant account from January 1, 2008 to December 31, 2010, the Plaintiff failed to prepare tax invoices, books, etc. related to precious metal transactions, ② the Defendants failed to conduct an on-site investigation due to lack of evidence to prove on-site investigation, ③ the entry amount of the instant account (OOO's deposit) is deemed to have omitted some of the Plaintiff's sales in the instant account without depositing all the sales in the account, ④ the Plaintiff's assertion that it is difficult to calculate the value-added tax base on the premise that the Plaintiff's sales in cash (OO's deposit rate) was excessively unnecessary, ④ the Plaintiff's sales in the instant account is not subject to the imposition of value-added tax (O's non-value-added tax) and the Plaintiff's sales in the instant account (O's non-value-added tax exemption rate of KRW 2) and the Plaintiff's sales in the instant account is not subject to further investigation.

4. Conclusion

Therefore, the part of the lawsuit of this case seeking revocation of the imposition of value-added tax and global income tax is unlawful, and all of them are dismissed. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.