Action demanding revocation of imposing penalty tax

The notice of refund results does not include the amount of tax by type and the basis for calculation between additional taxes, so the resolution of this case (Assessment Disposition) is unlawful.

The contents of the judgment are the same as attachment.

2017Guhap6920 Action Demanding revocation of the disposition imposing additional tax

Co.*****

port of origin

on October 2018 03

on October 03, 2018

1. The Defendant’s imposition of penalty tax of KRW 37,186,831, which was imposed on the Plaintiff on March 29, 2016, is revoked.

2. The costs of the lawsuit are assessed against the defendant.

(1) See the order of the Gu office;

1. Details of the disposition;

A. On April 10, 200, the Plaintiff was a company engaged in value-added telecommunications business and registered its business with its principal place of business.

B. On May 31, 2014, the Plaintiff entered into a logistics agency contract with AAA corporation on behalf of the Plaintiff with a logistics center located in ○○○○○○○-ro, as the 000 ambane of the wife population. The Plaintiff entered into a logistics agency agreement on December 7, 2015 with respect to the above logistics center (hereinafter “instant business”). On January 1, 2016, the Plaintiff converted its business registration into a unit taxation business entity under Article 8(3) of the Value-Added Tax Act.

D. The Plaintiff filed a final tax return on January 5, 2016 2015 2.20.20 36 - 196 - 36 - 196 - 36 - 197 - 36 - 197 - 20 - 197 - 37 - 197 - 196 - 36 - 197 - 197 - 196 - 36 - 9 - 196 - 197 - 20 - 197 - 196 - 3 5 - 197 - 196 - 36 - 196 - 196 - 196 - 30 - 196 - 197 - 196 - 196 - 39

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 5, 9, and the purport of the whole pleadings set forth in Eul evidence Nos. 1 through 3 (including each number)

2. Whether the lawsuit of this case is lawful

A. The defendant's notice of the result of the refund of this case is not a disposition that specifically and directly affects the existence and scope of the right to claim the refund of this case, and thus cannot be viewed as a disposition that is the object of appeal litigation, and therefore, it will be examined.

B. Where the tax authority rendered a decision of correction that reduces the amount of tax payable under Article 57 of the Value-Added Tax Act or increases the amount of tax payable on the ground that a taxpayer had an omission or error in the initial tax base or amount of tax payable or the amount of tax refundable, etc., the determination of tax liability arising from the initial return shall no longer be maintained. As such, a taxpayer is required to file a lawsuit seeking revocation against the original return order for the purpose of receiving the amount of tax refundable (see, e.g., Supreme Court Decision 2000Du7520, Oct. 26, 2001). In addition, where the refund result notice as in the instant case contains a mixture of the tax base or amount of tax payable or the amount of tax payable and the portion on which the additional tax is imposed on the grounds that the amount of tax payable exceeds 123,956,102 won for the final return of the Plaintiff’s amount of tax payable on the grounds that the amount of tax payable and the amount of tax imposed are not subject to correction or correction (see Supreme Court Decision 2000).

A. The plaintiff's assertion

In order to impose penalty tax, a tax notice stating the period of taxation, tax items, amount of tax, the basis for calculation thereof, payment deadline, and place of payment must be issued by the taxpayer. The defendant did not comply with it, and as such, the service fees were revoked through a request for correction. Since the service fees were generated at the workplace of this case and both the head office and branch offices of the same corporation, the tax invoice prepared in relation to the input tax amount of this case are tax invoices consistent with the facts, and even if not, it constitutes a case where transaction is confirmed by mistake, and the Plaintiff’s return of the tax amount on the service fees as the input tax amount of the business establishment of this case constitutes a case where justifiable grounds exist that the Plaintiff reported the tax amount on the service

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Relevant legal principles

If a tax payment notice does not properly state the tax base and basis of calculation of the principal tax, the taxation disposition is unlawful unless there are special circumstances. Even if there are no separate provisions on the tax payment notice, such as the Value-Added Tax Act, if the tax payment notice does not stipulate the basis of calculation of the amount of tax as provided in Article 9(1) of the National Tax Collection Act, such taxation disposition is unlawful. Meanwhile, in relation to the imposition of additional tax, no separate provision on the method of the tax payment notice is provided in the Framework Act on National Taxes or individual tax laws. However, even though additional tax is imposed on the principal tax item (main sentence of Article 47(2) of the Framework Act on National Taxes), its nature is a kind of administrative sanction that imposes on the taxpayer, etc. who violates the tax law without justifiable grounds in order to facilitate the exercise of the authority to impose taxes and the realization of the tax claim. Furthermore, the imposition of additional tax is not only different for each tax item of the principal tax, but also is also various criteria for imposition and calculation. Therefore, it is not easy to understand what basis of calculation of additional tax.

In light of the above, the purport of Article 9(1) of the National Tax Collection Act regarding a notice of tax payment ought to be carried out as it is in the notice of tax payment (see, e.g., Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012).

D. Determination

1) If an entrepreneur has a reason under Article 60 of the Value-Added Tax Act, the amount of penalty tax calculated by adding or deducting the amount of penalty tax payable by the entrepreneur from the amount of tax payable. However, according to the above legal principle, the penalty tax is required to be imposed by a legitimate procedure under Article 9(1) of the National Tax Collection Act. However, in light of the following circumstances, it is difficult to deem that the Defendant imposed penalty tax through a lawful procedure.

① A separate notice of tax payment on the above additional tax was not issued, and the notice of refund in this case contains only the amount of the additional tax to be deducted from the amount of the tax amount. 37,186,831 won of the above additional tax is deemed to be equivalent to 3% of the corrected input tax amount. However, there is no indication as to what amount of the additional tax constitutes an additional tax and its amount is calculated for any reason under Article 60 of the Value-Added Tax Act. (2) According to the resolution of tax correction (proof No. 1), the above total amount of the additional tax appears to be the sum of the two kinds of additional taxes. The notice of refund in this case does not state such matters or the grounds for calculating the amount of tax by type between the additional taxes. (3) The instant disposition of tax in this case was imposed by the Defendant while correcting that some amount of the input tax amount was not deducted from the return of the Plaintiff’s value-added tax amount. Thus, it is deemed that the Plaintiff’s additional tax was imposed in relation to a part of the reported input tax amount.

3) Therefore, the instant disposition is unlawful, and thus, the instant disposition should be revoked without the need to determine the remainder of the Plaintiff’s claims.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

1) The Plaintiff’s purport of the claim is as follows: “The Defendant’s portion of imposition of penalty tax of KRW 37,186,831 among the disposition to reduce the refund of KRW 161,142,933, which was imposed on the Plaintiff on March 29, 2016 by the Defendant on the Plaintiff on March 29, 2016 is revoked; and it is so decided as per Disposition 1.