Suwon District Court 201Guhap165, 23 August 2011)

Early High Court Decision 201Du2676 ( November 07, 2011)

Any lawsuit which does not meet the requirements of the administrative appeal transfer is unlawful.

The plaintiffs' petition for a trial is unlawful since it was filed after the lapse of the 90-day period. Thus, the lawsuit of this case also does not meet the requirements of the administrative appeal.

Article 55 of the Framework Act on National Taxes

2011Nu3367 Revocation of Disposition of Imposition of Value-Added Tax

KimAA et al.

Head of Namyang District Tax Office

District Court Decision 2011Guhap1165 Decided August 23, 2011

March 8, 2012

March 22, 2012

1. Revocation of a judgment of the first instance;

2. All of the claims in this case shall be dismissed.

3. The plaintiffs' preliminary claims are all dismissed.

4. The costs of the lawsuit are assessed against the Plaintiffs.

The judgment of the first instance court is revoked. In the first instance court, the defendant around January 3, 201 revoked each disposition of value-added tax of KRW 17,059,820, and value-added tax of KRW 2,835,940, which was imposed on the plaintiff KimA on November 1, 201 by the defendant against the plaintiff KimA on November 3, 2009. In the first instance, each disposition of imposition is invalid.

1. Details of the disposition;

The court's explanation in this part is the same as the part concerning "1. Reasons for the decision of the court of first instance". Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 11420 of the Civil Procedure Act.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

Since the Plaintiffs purchased oil from the EEE and received a tax invoice, each tax invoice received by the Plaintiffs cannot be deemed to constitute a false tax invoice. Moreover, the Plaintiffs were not aware of the fact that the EEEE is a disguised business operator, and there was no negligence for not knowing the fact. Nevertheless, each of the dispositions of this case, which the Defendant reported differently, is unlawful, and the Plaintiffs primarily filed a claim for the cancellation of each of the dispositions of this case and filed a claim for the confirmation of invalidity of each of the dispositions of this case.

B. Relevant statutes

The reason why this Court is to be implemented is as stated in the relevant Acts and subordinate statutes of the court of first instance, except for the addition of the Acts and subordinate statutes such as the attached Form of this judgment, so it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

C. Judgment on the main claim

1) In filing an appeal seeking a revocation of a tax imposition disposition, an appeal shall be filed, which is a procedure for the previous trial, and shall undergo a decision thereon (Articles 55(1) and 56(2) of the Framework Act on National Taxes, and Article 18 of the Administrative Litigation Act), a request for examination or adjudgment shall be filed within 90 days from the date on which the notice of the relevant disposition is received (Articles 61(1) and 68(1) of the Framework Act on National Taxes). In order to request for examination or adjudgment after filing an objection, the appeal shall be filed within 90 days from the date on which the decision on the objection is notified (Articles 61(2) and 68(2) of the Framework Act on National Taxes, which are inappropriate due to the lapse of the time limit for filing the appeal or adjudgment, the administrative litigation shall not be dismissed as it fails to meet the pre-determination requirements (see, e.g., Supreme Court Decision 90Nu8091, Jun. 25, 1991).

2) As to this issue, Article 18(2) and (3) of the Administrative Litigation Act provides for cases where a suit for cancellation may be instituted without going through an adjudication of the administrative appeal. However, Article 56(2) of the Framework Act on National Taxes infringes on the right to a trial and violates the principle of excessive prohibition. Article 56(2) of the Framework Act on National Taxes provides that if an administrative appeal is rendered against the same kind of case as this case, it shall be interpreted that a suit for cancellation may be instituted without filing a request for examination or a request for adjudication. Accordingly, the instant suit is lawful. Then, the instant disposition for imposition of taxes shall be conducted in a large amount compared to the general administrative disposition, and its expertise and skills, etc. are not clearly related to the fact by using expert knowledge and experience of the tax authority prior to the filing of the suit, and thus, it may not be deemed that it constitutes a violation of the principle of no taxation proceeding prior to the filing of the suit for cancellation of taxes by allowing it to be entered in the first instance court.

D. Determination on the conjunctive claim

This Court's reasoning is as follows: (a) The reasoning for this Court's explanation is as stated in Section 2 of the judgment of the court of first instance, except where "GGGG Energy" in Section 5-14 of the judgment of the court of first instance is "FG Energy" as "FG Energy," and therefore, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. Conclusion

Therefore, all of the main claims in the lawsuit in this case shall be dismissed, and all of the plaintiffs' conjunctive claims shall be dismissed.However, the judgment of the court of first instance shall be dismissed without first determining the main claims, and since several of the conjunctive claims are indivisiblely combined in one litigation procedure, the judgment of the court of first instance is not permitted as it is contrary to the nature of the conjunctive consolidation. Therefore, the judgment of the court of first instance shall be revoked, and all of the main claims in this case shall be dismissed, and all of the plaintiffs' conjunctive claims shall be dismissed. It is so decided as per Disposition.