Whether a lawsuit seeking revocation of notice of non-payment of value-added tax is legitimate

In the tax method of tax return, notifying the tax amount without tax payment by the tax authority according to the taxpayer's non-payment without tax return is only a collection disposition for the collection of the final tax, not a taxation subject to the revocation lawsuit, and it is illegal to file a lawsuit. Since the tax authority complies with the request for correction of business registration and plans to conduct the business with the offender, the argument that the name theft

The contents of the decision shall be the same as attached.

Article 14 (Real Taxation under Framework Act on National Taxes)

1. Of the instant lawsuit, the part of the Defendant’s claim for revocation of the disposition imposing value-added tax and additional tax for the second period of March 5, 2008 against the Plaintiff is dismissed, respectively.

2. All remaining claims of the Plaintiff are dismissed.

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

The disposition of value-added tax of 15,005,90 won (the value-added tax of 14,827,965 + the additional tax of 177,935 won) and additional tax of 450,170 won and the additional tax of 450,170 won for the first period of 2008, which the Defendant notified to the Plaintiff as of March 5, 2008, and the additional tax of 7,413,980 won for the second period of 207 shall be revoked, respectively.

1. Details of the disposition;

A. On July 12, 2007, 2007, the ○○ Branch of the High Metal Wholesale and Retail Trade Co., Ltd. filed an application with the Defendant for business registration under the name of the Plaintiff, ○○○-dong 197-O, Busan, ○○-dong 197-5, but closed on May 27, 2008.

B. On January 25, 2008, the value-added tax for the second term portion was reported to the Defendant on January 25, 2007 in the name of the Plaintiff in relation to the above ○○○ shopping conference business.

C. However, the Plaintiff did not pay the above value-added tax. On March 5, 2008, the Defendant notified the Plaintiff of the second term value-added tax of KRW 15,005,90 (the value-added tax of KRW 14,827,972 + the additional tax of KRW 177,935 + the additional tax of KRW 177,935,935, and the late payment period of KRW 450,170, including the additional tax of KRW 15,456,070).

On April 1, 2008, the Defendant issued a scheduled value-added tax notice to the Plaintiff on April 1, 2008, and the tax amount was KRW 7,413,980 corresponding to 1/2 of the tax amount paid for the immediately preceding taxable period.

D. On May 23, 2008, the Plaintiff filed a request for examination with the National Tax Service on May 23, 2008, alleging that he/she was not the actual business owner of the ○○○ Commercial Council, but the request was dismissed on June 23, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 5, 7, and 8 (including additional numbers), the purport of the whole pleadings

2. Assertion and determination

A. The plaintiff's assertion

(1) From July 1, 2007 to December 31, 2007, the Plaintiff did not operate the business with the trade name of ○○○○○○dong from Busan Metropolitan City, and instead, worked for ○○ Company located in the city and lived in the above company dormitory until it retires on February 21, 2008, including the above period. The Plaintiff, around July 2007, issued the Plaintiff’s business registration certificate with the trade name “ ○○○ Commercial Association” in the Plaintiff’s name to prepare for the retirement of ○○○○ Enterprise, in the Plaintiff’s name, and kept the Plaintiff’s business registration certificate in the Plaintiff’s house. However, even though the Kim○ operated the business without permission from the Plaintiff’s wife, it was illegal and unjust in light of the principle of substantial taxation in light of the principle of substantial taxation.

(2) Since the sale that was reported for the second quarter of 2007 was false sale, the taxation based on this is unlawful.

(b) Related statutes;

(Omission)

C. Determination

(1) A duplicate of the principal tax of value-added tax for the second period of 2007

Of the instant lawsuit, regarding the legitimacy of a claim for revocation of the imposition of the principal tax for the second term portion of the year 2007, the amount of tax determined at the time a taxpayer or his tax base and tax amount are returned, such as value-added tax, and the taxpayer is obligated to pay the amount of tax together with the return. As such, the taxpayer’s notification that the taxpayer should pay the same amount of tax as the details of the tax reported by the tax authority without correction is merely a collection disposition for the collection of the final tax, and cannot be deemed as the subject of the revocation lawsuit (see Supreme Court Decision 2003Du8180, Sept. 3, 2004).

In the instant case, the notice of payment of March 5, 2008, for which the Plaintiff sought revocation, was issued in the name of the Plaintiff, and the above amount of tax has not been paid even though the value-added tax 14,827,972 for the second term of January 25, 2008 was reported in the name of the Plaintiff. As such, the Defendant notified the Defendant to pay the same amount of tax as the reported matters without any correction, and imposes penalty tax. As such, the second term of value-added tax in 2007 is merely a collection disposition for the collection of the already determined tax, and it cannot be deemed as a taxation subject to revocation lawsuit. Therefore, the lawsuit on this part is unlawful.

(2) Additional value added tax for the second quarter of 2007

이 사건 소 중 가산금 부과처분의 취소청구 부분의 적법 여부에 관하여 살피건대, 국세징수법 제21조, 제22조가 규정하는 가산금과 중가산금은 국세가 납부기한까지 납부되지 않은 경우 미납분에 관한 지연이자의 의'玭�부과되는 부대세의 일종으로서, 과세권자의 확정절차 없이 국세를 납부기한까지 납부하지 아니하면 당연히 발생하고 그 액수도 확정되는 것이며, 그에 관한 징수절차를 개시하려면 독촉장에 의하여 그 납부를 독촉함으로써 가능한 것이므로, 그 납부독촉이 위법한 경우에는 그 징수처분에 대하여 취소소송에 의한 불복이 가능할 것이나, 과세관청이 가산금이나 중가산금을 확정하는 어떤 행위를 한 바 없고, 다만 국세의 납세고지를 하면서 납기일까지 납부하지 아니하면 납기 후 가산금 및 중가산금으로 얼마를 징수하게 된다는 취지를 고지하였을 뿐이며, 납부기한 경과 후에 그 납부를 독촉한 사실이 없다면, 가산금이나 중가산금의 부과처분은 존재하지 않는다고 할 것이므로, 그러한 가산금이나 중가산금 부과처분의 취소를 구하는 소는 부적법하다고 할 것이다(2000.9.22. 선고 2000두2013판결 등 참조)

As seen above, the principal tax of value-added tax for the second period of 2007 is a tax in accordance with the method of tax return, and thus, the amount to be paid in the Plaintiff’s name is final and conclusive (the Plaintiff’s assertion that value-added tax was stolen by the reduction of the amount of tax) (see, e.g., Supreme Court Decision 2003Du8180, Sept. 3, 2004).

In the instant case, the notice of payment of March 5, 2008, for which the Plaintiff sought revocation, was issued in the name of the Plaintiff, and the above amount of tax has not been paid even though the value-added tax 14,827,972 for the second term of January 25, 2008 was reported in the name of the Plaintiff. As such, the Defendant notified the said reported matters to pay the same amount of tax without any correction, and imposes penalty tax. Thus, the second term value-added tax for the second term of 2007 is merely a collection disposition for the collection of the already determined tax, and it cannot be deemed as a taxation subject to revocation lawsuit. Therefore, the lawsuit on this part is unlawful.

(2) Additional value added tax for the second quarter of 2007

As to the legitimacy of the part of the claim for the cancellation of the disposition imposing additional dues in this case, the additional dues and aggravated additional dues as provided in Articles 21 and 22 of the National Tax Collection Act are the kind of additional dues and aggravated dues imposed in relation to unpaid arrears if national taxes are not paid by the due date, and if national taxes are not paid by the due date, the amount can naturally be determined if the national taxes are not paid by the due date without the due date of payment by the due date by the due date by the due date by the due date, and in order to commence the collection procedure, it is possible to demand the payment by the due date by the due date. Thus, if the payment notice is unlawful, it shall be possible by the due date by the due date by the due date. However, if the tax office has notified that the additional dues and aggravated additional dues shall be collected by the due date after the due date, and if there is no demand for the payment after the due date by the due date, the disposition imposing additional dues and aggravated additional dues shall be deemed unlawful (see, e.g., Supreme Court Decision 200Du1320.).

In the instant case, as seen earlier, the Defendant merely notified the payment of the second term value added tax in 2007 and notified the purport that if the amount of the tax is not paid by the payment deadline, the additional dues stated in the purport of the claim should be collected, and there is no evidence to support that the Defendant initiated the procedure for the completion of the fixed number by demanding the payment of the additional dues or made a final determination thereof. Therefore, the part of the instant lawsuit seeking its revocation is unlawful on the premise that the disposition for the imposition

(3) Additional value added tax for the second quarter of 2007

Among the lawsuit in this case, the part concerning the claim for revocation of the imposition of the value-added tax for the second period of 2007, and the tax law is an administrative sanction imposed in accordance with the law in order to facilitate the exercise of the taxation right and the realization of the taxation right where the taxpayer violates the tax return and the tax liability prescribed by the law without justifiable grounds, and the taxpayer's intention or negligence is not considered, and the land or mistake of the law does not constitute a justifiable reason (see, e.g., Supreme Court Decisions 2000Du1652, Feb. 8, 2002; 2003Du13632, Jan. 27, 2005).

As seen above, the value-added tax for the second period of 2007 is a tax in accordance with the method of filing a tax return, and thus, the Plaintiff is obligated to pay the tax amount under the above return (the Plaintiff’s assertion that the value-added tax was appropriated by Kim ○○ is insufficient to acknowledge it as seen below) as a result of the final tax return filed in the name of the Plaintiff (the Plaintiff’s assertion that the value-added tax was appropriated by Kim ○○ is not accepted). As examined below, the disposition imposing the above additional tax is lawful, unless there is any reasonable ground to deem that the Plaintiff did not pay the above value-added tax within the specified period (25 days after the expiration of the taxable period) under the law

(4) A scheduled notice of value-added tax for the first term of 2008

(A) As to the first argument

According to the substance over form principle, if the ownership of the income, profit, property, act, or transaction subject to taxation is nominal, and if the person to whom it belongs is separate, the person to whom it belongs shall be the taxpayer. However, in applying the substance over form principle under Article 14(1) of the Framework Act on National Taxes, the person to whom it belongs shall be the taxpayer and the person to whom the transaction belongs is separate.

In full view of the purport of the pleadings as a result of the fact-finding on the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ in the instant case’s return to and from the instant case’s health department, Gap’s 3 through 7 (including the serial number), partial testimony of witness rights, and the fact-finding on the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s signature, a copy of the Plaintiff’s business registration certificate, and a written statement that the Plaintiff’s wife had been able to make a statement.

However, the following circumstances are also acknowledged based on the aforementioned evidence. Upon the Plaintiff’s application for business registration at the competent tax office on July 12, 2007 in the name of the Plaintiff, the competent tax office classified the Plaintiff as a prior confirmation investigator, and requested the Plaintiff to correct it on July 20, 2007. Accordingly, the Plaintiff’s business plan, lease contract, and deposit passbook of KRW 20,000 was submitted. Based on this, the Plaintiff’s investigation was conducted on July 27, 2007, and the Plaintiff’s business registration was accepted. The Plaintiff asserted that the Plaintiff’s business registration was kept in the house with a business registration certificate issued. However, the Plaintiff’s non-Plaintiff’s agent appears to have filed an application for business registration at the ○○○○○ branch without the Plaintiff’s consent. The Plaintiff’s wife is difficult to believe that the Plaintiff’s assertion that he provided the Plaintiff’s seal to ○○ branch without the Plaintiff’s business registration certificate and the Plaintiff’s business registration certificate, and the Plaintiff’s assertion that the Plaintiff’s business owner did not belong to this part without permission.

(B) On the second argument

The Plaintiff asserted that sales related to the value-added tax for the second half-yearly period in 2007 were false sales, and disputing the disposition of scheduled notice of value-added tax for the first half-yearly period in 2008. However, the grounds alleged by the Plaintiff are about the defect in the value-added tax for the second half-yearly period in 2007, and the Plaintiff can make a request for correction pursuant to Article 45-2 of the Framework Act on National Taxes for the reason that there are errors in the tax base or tax amount reported in relation to the value-added tax for the second half-yearly period in 2007. However, this part of the Plaintiff’s assertion cannot be accepted as to the disposition of scheduled notice of value-added tax for the second half-yearly period in 2007 (as for the notice of scheduled value-added tax for the first half-yearly period in 2008, the individual entrepreneur’s return under the proviso to Article 18(2) of the Value-Added Tax Act or the final return procedure under Article 19 of the same Act.

Conclusion

Therefore, among the lawsuit in this case, the part of the defendant's claim for revocation of the principal tax and additional tax imposition for the second term of 2007 against the plaintiff on March 5, 2008 is unlawful, and thus, each of them is dismissed. The part of the additional tax among the value-added tax for the second term of 2007 and the part of the claim for revocation of the value-added tax for the first term of 2008 notified by the defendant as of April 1, 2008 are dismissed. It is so decided as per Disposition.