A lawsuit that does not go through legitimate pre-trial procedures is illegal;

A decision to dismiss an appeal with the lapse of the time limit for appeal, and a lawsuit is filed. The lawsuit of this case is unlawful without going through the procedure of the previous trial within a legitimate time limit.

Article 56 of the Framework Act on National Taxes concerning other Acts

Daegu District Court 2019Guhap424

○ Kim

○ Head of tax office

October 16, 2019

October 30, 2019

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

First, the Defendant’s imposition of value-added tax of KRW 13,535,460 for the year 2016 against the Plaintiff on September 8, 2016 shall be revoked, and the Defendant’s imposition of value-added tax of KRW 14,129,730 for the year 2016 against the Plaintiff on February 25, 2017 is revoked.

1. Basic facts

A. From April 1, 2016, the Plaintiff was registered as a joint proprietor of the retail shop, such as clothes, shoes, etc. (the trade name after the change: Schlage; hereinafter referred to as the “instant place of business”), and operated as a sole proprietor on May 1 of the same year.

B. On July 23, 2016, the Plaintiff reported to the Defendant the value-added tax of KRW 14,626,360 for the first year of 2016, and paid KRW 1,090,90 among them, and did not pay the remainder of KRW 13,535,460.

C. Accordingly, on September 8, 2016, the Defendant notified the Plaintiff of the payment of KRW 13,718,190 of value-added tax of KRW 13,535,460 (hereinafter “instant payment notice”) in 2016, which added up the additional tax paid for the erroneous payment of KRW 13,718,190. However, as the instant payment notice was returned five times from September 22, 2016 to December 14 of the same year due to the instant payment notice, the Defendant served by public notice on January 17, 2017.

D. On February 25, 2017, the Defendant: “Guidance for Payment of National Tax in Arrears” is the title “Guidance for Payment in Arrears” between the Plaintiff and 2 in charge of delinquent taxes. The Defendant’s request for payment was made by guiding the amount of national tax unpaid in the thickness and the virtual account. If it is difficult to pay the full amount, the payment was made in installments every month, and the payment was made in 3 million won from February to 3,000. If the unpaid disposition was conducted, the payment was made in arrears, and the contact was made at the time of contact with the Plaintiff. The unpaid amount is 14,129,730 won (value-added tax). The mobile phone guide was sent (hereinafter referred to as “instant guide”).

E. Accordingly, on May 15, 2018, the Plaintiff filed an appeal on the ground that “the value-added tax on the place of business of this case arising during the period before the Plaintiff was registered as joint business place” (hereinafter “instant appeal”) with the Tax Tribunal, and on August 14 of the same year, the said appeal was dismissed on the ground that it was filed after the lapse of the 90-day period from February 1, 2017, which is the effective date of the instant notice for payment notice by public notice by publication, and was unlawful.

F. On October 1, 2018, the Plaintiff again filed an appeal with the Tax Tribunal. However, on January 4, 2019, the said appeal was dismissed on the ground that it constitutes an overlapping appeal.

G. On March 25, 2019, the Plaintiff filed the instant lawsuit.

Facts without any dispute, Gap's 1 through 4, 6, 8, Eul's 3 and 4, the whole purport of the pleading, and the whole purport of the pleading.

2. The plaintiff's assertion

The portion of value-added tax incurred before March 31, 2016 (1/4 quarter 2016) that the Plaintiff registered as a business operator of the instant business establishment was not liable to pay to the Plaintiff. Therefore, the part concerning the first quarter of the imposition disposition of value-added tax for the first quarter of 2016 based on the instant notice of payment and the instant guide should be revoked unlawfully.

3. Whether the lawsuit of this case is legitimate

A. The defendant's main defense

The instant lawsuit shall be dismissed as it is unlawful because it does not go through a legitimate pre-trial procedure. In particular, the guidance of the instant case does not constitute an administrative disposition.

B. As to the main claim among the lawsuit of this case

1) According to Article 56(2) of the Framework Act on National Taxes, where an administrative litigation is instituted against a disposition under the Framework Act on National Taxes or other tax-related Acts, a request for examination or adjudgment under the Framework Act on National Taxes must undergo a prior trial procedure, such as a request for examination or adjudgment. In such a case, a request for examination or adjudgment shall comply with the request period. In a case where a request for examination or adjudgment is unlawful due to the lapse of request period, the administrative litigation shall also be deemed unlawful because it does not meet the requirements for transfer (see, e.g., Supreme Court Decision 90Nu8091, Jun. 25, 1991). Meanwhile, pursuant to Article 68 of the Framework Act on National Taxes, a request

2) In the instant case, the fact that the Defendant served the instant notice of payment by means of service by public notice to the Plaintiff on January 17, 2017 is identical to the fact that the Defendant served the instant notice of payment by public notice. As such, the instant notice of payment is deemed served on the Plaintiff on February 1, 2017 pursuant to Article 11(1) of the Framework Act on National Taxes, and the Plaintiff received the notice of the timely disposition. However, the Plaintiff filed the instant request with the Tax Tribunal on May 15, 2018, which is apparent that the lapse of 90 days from February 1, 2017, the Plaintiff filed the request period after the lapse of the request period (within 90 days from the date of receipt of the instant notice of payment by the Plaintiff, even if the Plaintiff received the instant notice of disposition on February 25, 2017), and the main part of the instant claim in the instant case is unlawful as it fails to meet the requisite requirements for the prior notice of payment.

C. As to the conjunctive claim among the instant lawsuit

Even if the instant guidance constitutes an administrative disposition, the Plaintiff did not go through a pre-trial procedure, such as a request for examination or adjudgment, as prescribed by Article 56(2) of the Framework Act on National Taxes regarding the instant guidance. Even if the instant request for adjudication was an objection to the instant guidance, the Plaintiff filed a request with the Tax Tribunal on May 15, 2018, since the Plaintiff was found to have passed since 90 days from February 25, 2017, which received the instant guidance, and the instant request for adjudication against the instant guidance was filed after the lapse of the time limit for filing the request. Therefore, the instant preliminary claim part among the instant lawsuit is unlawful because it did not satisfy the necessary pre-determination requirements.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is so decided as per Disposition by the assent of all.