A lawsuit seeking a revocation of the disposition of revocation of alcoholic beverage wholesale business without a previous trial procedure may not be brought;

Article 56 (2) of the Framework Act on National Taxes explicitly excludes the application of Article 18 (3) of the Administrative Litigation Act. Thus, even if the defendant stated to the plaintiff that "administrative appeal or administrative litigation can be filed" in the disposition of this case, the lawsuit of this case without going through the previous trial procedure is unlawful.

Article 8 License for Liquor Distribution Business of Liquor Tax Act

Article 15 of the Liquor Tax Act: Relation to Administrative Appeals Article 18 of the Framework Act on National Taxes Article 55 of the Framework Act on National Taxes for the License for Liquor Sales Business of Article 9 of the Enforcement Decree of the Liquor Tax Act

1. The instant lawsuit shall be dismissed.

2. The plaintiff shall bear the expenses of lawsuit.

The defendant's revocation of the comprehensive alcoholic beverage sales license made against the plaintiff on July 20, 207 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, upon obtaining a comprehensive alcoholic beverage wholesale license from the Defendant, runs a comprehensive alcoholic beverage wholesale business in Pyeongtaek-si 47-1, Pyeongtaek-dong.

B. On July 20, 2007, the Defendant discovered that the Plaintiff received liquor from the ○○○○ Co., Ltd., and discovered that he received a tax invoice without any real trade of more than 10/100 of the total purchase amount of alcoholic beverages, and issued the instant disposition to revoke a comprehensive liquor wholesale business license by applying Article 15(2)4 of the Liquor Tax Act to the Plaintiff.

Category of Flag

Total purchase amount of alcoholic beverages

Processing Purchase Amount

Trading Ratio

Total

1,410,329,000

219,650,000

16.9

2, 2005

568,683,00

54,425,00

9.6

1, 2006

538,478,00

120,134,000

22.3

2, 2006

303,168,000

45,091,000

14.9

1. See the basis for recognition: Statement 1 to 4 of the absence of dispute, and

2. The plaintiff's assertion

The Plaintiff, as an agent of ○○○○ Stock Company, received a tax invoice inevitably because it is difficult for the Plaintiff to refuse the demand of ○○○ Stock Company, and difficult to impose all taxes on it. As such, the Plaintiff would issue a tax invoice in excess of the supply volume at 32 companies supplying both the two owners. The Plaintiff’s revocation of a license for alcoholic beverage sales on the ground that the amount of the processed purchase tax invoice exceeds 10% of the total purchase amount, even though the Plaintiff received a large amount of the processed purchase tax invoice than that received by the Plaintiff, was unlawful as it goes against the principle of equality and the principle of proportionality.

3. Determination

First, we examine the legitimacy of the lawsuit.

The Defendant asserts that the instant lawsuit is unlawful since it was filed without undergoing a request for examination or adjudication under Article 56(2) of the Framework Act on National Taxes. Accordingly, the Plaintiff asserted that the Plaintiff may file a revocation lawsuit without filing an administrative appeal, on the ground that the Defendant stated “if there is an objection, it may file an administrative appeal or administrative litigation” in the disposition order, and that it constitutes “when the Defendant falsely notifies the administrative agency which has made the disposition that it is unnecessary to undergo an administrative appeal” under Article 18(3) Subparag. 4

However, Article 56 (2) of the Framework Act on National Taxes explicitly excludes the application of Article 18 (3) of the Administrative Litigation Act by stipulating that "no administrative litigation shall be filed without going through a request for examination or adjudgment under this Act and a decision thereon, notwithstanding the provisions of the main sentence of Article 18 (1), Article 18 (2) and (3) of the Administrative Litigation Act." Accordingly, even if the defendant stated in the disposition of this case in the disposition of this case against the plaintiff, he shall file a request for examination or adjudgment under the Framework Act on National Taxes, and the lawsuit of this case filed without the request for examination or adjudgment is unlawful in violation of Article 56 (2) of the Framework Act on National Taxes. Accordingly, the defendant

According to Article 15 (2) 4 of the Liquor Tax Act on the premise that the lawsuit in this case is lawful, if the amount of violation of duties to issue the tax invoices under Article 11-2 (1), (2) or (4) of the Punishment of Tax Evaders Act by taxation period under the Value-Added Tax Act exceeds 10/100 of the total sales amount of alcoholic beverages or the total purchases amount of alcoholic beverages, the head of the competent tax office shall revoke the license for alcoholic beverage sales business. Therefore, there is no room for discretion as to whether the revocation of the license for alcoholic beverage sales business constitutes a binding act and the disposition should be taken by the head of the competent tax office. The plaintiff's above assertion is premised on the disposition in this case's discretionary act

4. Related statutes.

○ License for liquor sales business under Article 8 of the Liquor Tax Act

(1) A person who desires to operate alcoholic beverage sales business (including sales, brokerage, or entertainment business; hereinafter the same shall apply) shall obtain a license from the head of the competent tax office for each sales outlet by kinds of alcoholic beverage sales business by meeting the facility standards

(2) The Presidential Decree shall prescribe the types of sales business under paragraph (1).

Article 15 of the Liquor Tax Act, etc. of Suspension of Sales

(2) The head of the competent tax office shall cancel a license when a person who has obtained a sales business license falls under any of the following subparagraphs:

4. Where the amount of violation of duties to issue the tax invoices under Article 11-2 (1), (2) or (4) of the Punishment of Tax Evaders Act by taxation period falling short of the Value-Added Tax Act exceeds 10/100 of the gross total sales of alcoholic beverages or the gross total purchases of alcoholic beverages;

Article 9 of the Enforcement Decree of the Liquor Tax Act

(2) The kinds of sales business of alcoholic beverages under Article 8 (2) of the Act shall be as follows:

1. Comprehensive alcoholic beverage wholesale business;

To wholesale alcoholic beverages by purchasing and wholesale alcoholic beverages (excluding spirits) from a manufacturer or importer of foreign alcoholic beverages directly.

○ Objection to Article 55 of the Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007)

(1) Any person whose rights or interests are infringed by receiving an unlawful or unreasonable disposition, or by failing to receive a necessary disposition, as a disposition under this Act or other tax-related Acts, may request the cancellation or modification of the disposition, or a necessary disposition, by making a request for examination or adjudgment under

(3) An objection under this Chapter may be raised prior to a request for examination or adjudgment on the relevant disposition, except where the disposition under paragraphs (1) and (2) is to be or should have been investigated, determined or managed by the Commissioner of the National Tax Service.

(5) No disposition falling under any of the following subparagraphs shall be included in the disposition under paragraph (1):

1. Disposition on an objection, request for examination or adjudgment under this Chapter: Provided, That the cases of request for examination or adjudgment on the disposition of objection shall be excluded;

2. Disposition of notification under the Procedure for the Punishment of Tax Evaders Act;

3. Any disposition taken against a request for examination or a request for examination under the Board of Audit and Inspection Act;

(6) The request for evaluation under paragraph (5) 3 shall be filed within 90 days from the date (the date on which a disposition notice is received) on which an applicant becomes aware of the relevant disposition.

(7) Notwithstanding the provisions of Articles 18 (2) and (3) and 20 of the Administrative Litigation Act, any administrative litigation against a disposition taken after a request for examination referred to in paragraph (5) 3 shall be filed with the agency as a party within 90 days from the date on which a decision on such

(8) The period prescribed in paragraphs (6) and (7) shall not be changed.

(9) No request for examination and adjudgment on the same disposition may be filed in duplicate.

Article 56 of the Framework Act on National Taxes

① 제55조에 규정하는 처분에 대하여는 「행정심판법」의 규정을 적용하지 아니한다. 다만, 동법 제11조·제12조·제16조·제20조 및 제26조의 규정은 심사청구 또는 심판청구에 대하여 이를 준용하되, 이 경우 "위원회"는 "국세심사위원회","국세심판관회의" 또는 "국세심판관합동회의"로 본다.

(2) Notwithstanding the provisions of the main sentence of Article 18 (1) and Article 18 (2) and (3) of the Administrative Litigation Act, any administrative litigation against any illegal disposition prescribed in Article 55 shall not be instituted without going through a request for examination or adjudgment and a decision thereon under this Act.

(3) Notwithstanding the provisions of Article 20 of the Administrative Litigation Act, the administrative litigation under paragraph (2) shall be instituted within ninety days after decision on the request for examination or adjudgment is notified: Provided, That where decision is not notified within the period of decision prescribed in Article 65 (2) or the proviso of Article 81, the administrative litigation may be initiated from the date the prescribed period of decision expires even before the decision is notified.

(4) The provisions of paragraph (2) shall apply mutatis mutandis to cases where a request for examination under Article 55 (5) 3 has been made through a request for examination or adjudgment.

(5) The period under paragraph (3) shall be invariable.

○ Relation with the administrative appeal under Article 18 of the Administrative Litigation Act

(1) A revocation lawsuit may be brought without going through an administrative appeal against the relevant disposition under Acts and subordinate statutes: Provided, That this shall not apply to cases where other Acts and subordinate statutes prescribe that a revocation lawsuit may not be brought without going through an administrative appeal against the relevant disposition.

(2) In cases falling under the proviso to paragraph (1), a revocation suit may be instituted without going through an adjudication on an administrative appeal, in the following cases:

1. Where no adjudication is made even after 60 days have passed from the date an administrative appeal was requested;

2. Where an urgent need exists to prevent a serious loss caused by the execution of a disposition or the continuation of procedures;

3. Where there exist grounds for not being able to make a decision or ruling by an administrative appeals agency under Acts and subordinate statutes; and

4. When other justifiable grounds exist.

(3) In the case of the proviso to paragraph (1), the minimum litigation may be instituted without filing an administrative appeal on any of the following grounds:

1. Where a rejection ruling of an administrative appeal has already been made with respect to the same case;

2. Where one of the dispositions related to the contents of each other or dispositions carried out by stages for the same purpose has already been adjudicated by an administrative appeal;

3. When an administrative agency files a lawsuit concerning the changed disposition after changing the disposition which is the object of a lawsuit after the closing of argument;

4. When the administrative agency which has rendered the disposition notifies mistakenly that it is unnecessary to undergo an administrative appeal.

(4) The grounds under paragraphs (2) and (3) shall be vindicated.

5. Conclusion

If so, the lawsuit of this case is unlawful and dismissed.