Whether a notice of the results of the tax investigation is subject to the appeal lawsuit

The notification of the results of the tax investigation is merely notification of information such as the results of the tax investigation, and it does not result in a direct change in the rights and obligations of the people, such as taxation.

Article 81-4 of the Basic Act

Incheon District Court 2018Guhap78 Nullification of the global income tax assessment

○ ○

○ Head of tax office

November 15, 2018

December 06, 2018

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant confirmed that the decision on collection of KRW 12,332,070, global income tax on April 30, 2014, which was imposed by the Plaintiff on the Plaintiff on April 30, 2014, is null and void [it is understood to the purport that the Defendant seeks the confirmation of invalidity of the notification of the result of the tax investigation conducted on April 30, 2014 by the Plaintiff on April 30, 2014, as the subject of seeking confirmation of invalidity by the instant lawsuit is clearly indicated as the result of the Defendant’s tax investigation conducted on April 30, 2014];

1. Basic facts

A. The Defendant selected the Plaintiff as a person subject to investigation on the ground that the Plaintiff was suspected of omitting the amount of income during the global income tax for the year 2012, and conducted a partial investigation on the global income tax for the year 2012 from April 7, 2014 to April 26, 2014.

B. As a result of the investigation conducted by the Plaintiff, the Defendant: (a) lent money to the ○○○ from January 2, 2012 to September 24, 2012; (b) deemed that the Plaintiff received KRW 84,894,00 from the total income amount of KRW 84,894,00 by deducting the simple expense (25.7%) from the total income amount of KRW 84,894,00; and (c) made a decision on the estimated income amount on April 30, 2014 by deducting the amount calculated by applying the simple expense (25.7%) from the total income amount of KRW 84,894,00; (d) pursuant to the main sentence of Article 81-12 of the former Framework Act on National Taxes (Amended by Act No. 12848, Dec. 23, 2014; hereinafter the same).

C. On June 3, 2014, the Plaintiff filed a request for pre-assessment review with the Defendant. On July 15, 2014, the Defendant rendered a decision not to adopt the Plaintiff’s request for pre-assessment review, and on July 16, 2014, the Plaintiff decided and notified the Plaintiff of KRW 12,332,070, global income tax for the year 2012.

D. On February 23, 2015, the Tax Tribunal filed an appeal with the Tax Tribunal. On February 23, 2015, the Tribunal rendered a decision to rectify the tax base and tax amount after deducting KRW 2,750,000 from the total income amount, and dismiss the remainder of the appeal. Accordingly, on March 11, 2015, the Defendant corrected the total income tax amount reverted to the Plaintiff in 2012 to KRW 11,689,70.

[Grounds for recognition] The entry of evidence Nos. 2 and 3, and the purport of the whole pleadings

2. Whether the designation of a litigation performer is illegal;

A. The plaintiff's assertion

According to Articles 3 and 5 of the Regulations on Litigation Affairs, an investigator of the relevant case and an employee (where a person moves, his/her successor) who has imposed a disposition of imposition of the said case shall be designated as a litigation performer. The Defendant designated only an investigator who has conducted a tax investigation on the Plaintiff and an employee of a secondary regional tax office who has not been a successor or his/her successor as a litigation performer. In addition, the Defendant submitted a letter of designation of a litigation performer, who is a superior, shall obtain approval from the director of a regional regional tax office. In addition, the Defendant submitted a letter of designation of a litigation performer with only the Defendant’s official seal affixed without submitting a document

B. Determination

Article 3(4) of the Regulations on the Handling of Litigation Affairs (National Tax Service Directive No. 2227; hereinafter the same shall apply) shall be jointly conducted by the competent local office's staff members, the investigation, analysis, and audit of the relevant case and the person in charge of tax office's imposition (including persons who succeed to the duties if there is a personnel movement). The head of the competent local office (the head of the competent office) shall, in consideration of the importance of the case, have the person in charge of the affairs of the local office or the person in charge of tax office: Provided, That Article 5(1) of the Regulations on the Handling of Litigation Affairs (the head of the competent office), "the director in charge of tax office who has received a request for designation of a litigation performer, shall consult with the head of the competent local office's office's office's office's office's office's office's office's staff members (including Grade V staff members in the personnel litigation case), and notify the taxpayer protection officer through the UN (NTIS).

In such cases, it shall be permitted to designate only the staff of the regional tax office as a litigation performer in consideration of the importance of the case in accordance with the above provision, as well as the personnel belonging to the office of administration or tax office, if other employees are included in the office of administration or tax office.

Article 5(1) of the Act on Litigation to Which the State is a Party provides that "the head of an administrative agency may designate the staff of the relevant administrative agency or the staff of the superior administrative agency (in this case, the prior approval of the head of the relevant superior administrative agency shall be obtained) and have them perform the administrative litigation." The Defendant’s designation of the staff of a senior regional tax office as a litigation performer is based on Article 5, etc. of the Rules on Litigation Affairs, so long as the designation was made pursuant to Article 5, etc. of the Rules on Litigation Affairs, it can be deemed that the staff of the superior administrative agency as a senior administrative agency is designated as a litigation performer with the approval of the director of the regional regional tax office among the superior administrative agencies. As long as Article 58(1) of the Civil Procedure Act provides that the fact that the fact of having received authority for litigation must be attested

Therefore, the designation of the defendant's litigation performer is not illegal.

3. Whether the lawsuit of this case is legitimate

A. The plaintiff's assertion

The Defendant, even though the Plaintiff is not a person subject to investigation, conducted a tax investigation by selecting the Plaintiff as a person subject to investigation, and conducted a re-audit on the same tax item and the same taxable period. On April 14, 2014, the Defendant conducted a re-audit on the Plaintiff on April 18, 2014, requiring the Plaintiff to attend the investigation and the office of the Deputy Tax Affairs Office, and arbitrarily fabricated the Plaintiff’s account books, etc. for the purpose of tax investigation without the Plaintiff’s consent. As such, the Defendant’s tax investigation against the Plaintiff is unlawful and the instant

Since the Plaintiff did not receive interest income while engaging in a transaction of lending money to ○○ from January 2, 2012 to September 24, 2012, and did not recover the principal amount of KRW 81,900,000, the instant notification made on the ground that the Plaintiff obtained interest income, is unlawful.

The notification of this case is null and void as the above defects are significant and apparent.

B. Determination

The term "disposition of an administrative agency, which is the object of an appeal litigation, means, in principle, an act of an administrative agency under public law, which is directly related to the rights and obligations of citizens, such as ordering the establishment of rights or the burden of obligations, or directly giving rise to other legal effects with respect to a specific matter. The issue of whether an administrative agency's act can be the object of an appeal litigation cannot be determined abstractly and generally. In specific cases, an administrative disposition is an act that directly affects the rights and obligations of citizens as an enforcement of law with respect to a specific fact by an administrative agency as the subject of public authority. In mind, the determination should be based on the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties such as the other party, etc., and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court en banc Decision 20

The defendant's notification of this case is a notification of the result of tax investigation under the main sentence of Article 81-12 of the former Framework Act on National Taxes that the tax authority notifies taxpayers of information about the result of tax investigation, etc., and does not in itself cause direct changes to the rights and obligations of the people, such as taxation. Thus, the notification of this case cannot be deemed a disposition subject to appeal litigation (the plaintiff can file an appeal against the disposition of tax

4. Conclusion

The lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.