The notice of collection does not constitute a disposition subject to appeal litigation;

The collection notice of this case does not constitute a disposition that is subject to appeal litigation because it is merely a procedure for collecting the confirmed tax amount, and also is illegal as it was filed without going through the procedure of a prior trial under the Framework Act on National Taxes.

2013Guhap10788 Disposition of Imposing value-added tax

KimA

Head of North Daegu Tax Office

August 21, 2013

October 11, 2013

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The imposition of the value-added tax for the first period of September 4, 2012 by the Defendant against the Plaintiff on September 4, 2012, and the scheduled notice of the value-added tax for the second period of October 1, 2012 is revoked, respectively.

1. Circumstances of dispositions;

A. On November 1, 201, the Plaintiff registered the business of the clothing manufacturing industry (hereinafter referred to as the “instant business”) with the trade name, namely, OOO-gu OO-dong No. 1667, No. 4005 of the Textiles Product No. 1667, as the place of business.

B. The Plaintiff filed a final tax return on the first term portion of value-added tax in 2012 with the Defendant, and filed a tax return on the input tax amount at the output tax amount less the input tax amount, the reduced tax amount, and the estimated tax amount.

C. However, on September 4, 2012, the Defendant, who did not pay the above amount of tax, issued a decision to collect and notify the amount of value-added tax for the first term portion of the value-added tax OOOO (the amount of tax to be paid + additional OOOO won) to the Plaintiff (hereinafter “instant notice of collection”). The instant notice of collection was sent to the instant place of business on September 7, 2012 and sent to the instant place of business on September 10, 2012, by SongCC received the instant notice of collection.

D. On October 1, 2012, the Defendant passed a resolution on the scheduled notice of KRW OO (OOOEx 1/2, 1,000,000,000) on October 1, 2012 against the Plaintiff (hereinafter referred to as “scheduled notice”). On October 9, 2012, the instant scheduled notice was sent to the instant place of business, and SongCC received it on October 10, 2012 as the employee of the said place of business.

E. However, on January 24, 2013, the Plaintiff filed a final return on the value-added tax amount for the second term of 2012 to the Defendant (the sales tax amount - the input tax amount - the input tax amount OOO won).

F. Accordingly, on July 22, 2013, the Defendant decided to rectify the amount of value-added tax for the second period portion of the Value-Added Tax for the second period on July 22, 2012 to be refunded, and partly of the amount of the above refund shall be appropriated to the total amount of the Plaintiff’s previous arrears (OO + OOO + + OOO KRW). The remainder of the amount of the scheduled notice in this case to be appropriated to the total amount of the Plaintiff’s previous arrears, and the amount of the notice of value-added tax for the second period of the second year of 2012 to be appropriated to the total amount of the expected notice in this case to be appropriated to the total amount of the pre-existing arrears.

G. On June 24, 2013, the Plaintiff filed the instant lawsuit against the Defendant without undergoing a request for examination or adjudgment as prescribed by the National Tax Trial Act.

[Reasons for Recognition] Entry of the non-contentious facts in the evidence Nos. 1 through 6, the purport of the whole pleadings

2. Whether the lawsuit of this case is legitimate

A. The parties' assertion

The plaintiff asserts that the actual manager of the place of business of this case is D, and he has lent his resident registration certificate, seal, and passbook without any choice to force EE, and that there is no tax return to the defendant or no tax payment notice has been received from the defendant. Thus, the plaintiff's notice of collection and notice of scheduled amount should be revoked in all unlawful ways.

Accordingly, the Defendant asserts that the instant notice of collection does not constitute a disposition subject to appeal litigation because it is merely a procedure for collecting the confirmed tax amount, and that the instant lawsuit is unlawful as it was filed without going through a prior trial procedure under the Framework Act on National Taxes.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(i)the degree of defects;

In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is serious and objectively obvious. In a case where there are objective circumstances that make it possible to mislead a person to be subject to an administrative disposition with respect to certain legal relations or factual relations which are not subject to an administrative disposition, and where it can only be clarified whether it is subject to an accurate investigation of such factual relations, it cannot be said that it is apparent that it is obvious that the mistake is serious (see Supreme Court Decision 2006Da83802, Mar. 16, 2007).

With respect to the instant case, as otherwise alleged by the Plaintiff, whether the EE strongly deducteds the Plaintiff’s resident registration certificate, seal, or passbook that the E had been forcibly deprived of the Plaintiff’s name can only be identified only when it is investigated accurately. Therefore, such defect cannot be objectively apparent.

Therefore, in order for the plaintiff to seek revocation by disputing the collection notice and the scheduled collection notice in this case, the above collection notice and the scheduled collection notice should have the nature of disposal, as well as the pre-trial procedure under the Framework Act on National Taxes.

2) Whether the previous trial procedures are complied with

Under Articles 55, 56(2) and 68(1) of the Framework Act on National Taxes, an administrative litigation against a disposition of national taxes may not be filed without going through a request for an island or a request for adjudgment and a decision thereon under the Framework Act on National Taxes, notwithstanding the provisions of the main sentence of Article 18(1), Article 18(2) and (3) of the Administrative Litigation Act. An appeal against a disposition of national taxes shall be filed within 90 days from the date (in a case where a notice of disposition is received, the date of its receipt) on which the relevant disposition is known. Unlike the discretionary principle of administrative appeals applicable to general administrative litigation, an administrative litigation against a disposition of national taxes shall be subject to a request for examination or a request for adjudgment under the Framework Act on National Taxes. In the meantime, when a third party permits a third party to use his/her name in connection with a certain business, it shall be deemed that the third party or his/her employee delegated the authority to receive the tax (see Supreme Court Decision 2004Du3717, Jul. 9

According to the above facts as to this case, the defendant sent the notice of collection of this case to the workplace of this case on September 7, 2012 and received it on the 10th of the same month. The defendant sent the notice of scheduled collection to the workplace of this case on October 9, 2012 and received it on the 10th of the same month by the worker SongCC for the above workplace on October 9, 2012. The plaintiff did not file a request for examination or a request for trial under the Framework Act on National Taxes until 90 days from the date of receipt of each of the above cases. Accordingly, the lawsuit of this case was filed without going through the procedure of the previous trial,

As to this, the plaintiff asserts that he had a resident registration certificate, seal, or passbook and lent his name without forced compulsion of the EE EE, so it is not sufficient to recognize it only by the descriptions of the health unit, Gap Nos. 1 and 2, and there is no other evidence to acknowledge it. Thus, the plaintiff's above assertion is without merit.

3) Whether the instant notice of collection was disposed of

According to Article 22(1) of the Framework Act on National Taxes, Article 10-2 subparag. 1 of the Enforcement Decree of the same Act, and Article 49(1) of the Value-Added Tax Act, value-added tax is a tax for which a taxpayer files a return on the tax base and amount of tax, and is obligated to pay the amount of tax determined and payable together with the return when the taxpayer files a return on the tax base and amount of tax. Therefore, if a taxpayer merely files a return on the tax base and amount of tax of value-added tax and fails to pay the same amount of tax as the return without any correction, it is merely a collection disposition for the collection of the final and conclusive tax, and cannot be deemed as a taxation subject to a revocation lawsuit (see, e

According to the above facts, the Plaintiff reported the value-added tax for the first period of 2012 to the Defendant, but did not pay the pertinent value-added tax. Accordingly, the Defendant notified the Plaintiff that the Plaintiff should pay the amount added to the details of the report without any correction as to the said reported matters. As such, it is merely merely a mere claim or order for the Plaintiff’s collection of the amount of tax finalized by the Plaintiff’s report, and it cannot be deemed a taxation subject to revocation lawsuit. Accordingly, this part of the lawsuit is unlawful on the grounds as well.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.