early 2012 Middle 4077 ( October 12, 2012)

Even if the defect is serious, it is not clear in appearance to invalidate the taxation disposition as a matter of course.

Even if the defect is serious, it cannot be deemed apparent in appearance, and if the legal relations or factual relations of the object of taxation are mistaken and taxes are imposed, the taxation disposition cannot be deemed to be null and void as a matter of course, and if the procedure of the previous trial is illegal due to the lapse of the period, the administrative litigation

2012Guhap5439 global income and confirmation of invalidity of disposition, etc.

Park AA

The director of the North Incheon National Tax Office

January 18, 2013

February 8, 2013

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. The plaintiff's primary claim is dismissed.

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

The imposition of each global income tax on the Plaintiff as listed in the separate sheet prepared by the Defendant against the Plaintiff is without merit.

The effect is confirmed. Preliminaryly, each disposition of global income tax imposed by the defendant against the plaintiff on the plaintiff shall be revoked.

1. Details of the disposition;

A. On May 20, 2003, the Plaintiff is a person registered as an individual entrepreneur who manufactures and engages in construction business under the trade name of BBM in the OOdong 000O of Silung-si.

B. On November 1, 2008, the Defendant imposed and notified the Plaintiff of the global income tax (in this case’s 1 disposition), KRW 000,000,000,000,000,000,000 for the global income tax (in this case’s 2 disposition) accrued in August 5, 2009, and KRW 00,000 for the global income tax (in this case’s 3 disposition) accrued in 2009, and on April 1, 2008 (in this case’s 3 disposition), respectively (hereinafter “instant disposition”) for each of the above dispositions (hereinafter “instant 4 disposition”), and each of the above dispositions “each of the above dispositions”).

C. On September 4, 2012, the Plaintiff dissatisfied with each of the dispositions in this case, filed an appeal with the Tax Tribunal on September 4, 2012, and on October 30, 2012, the Tax Tribunal rendered a decision to dismiss the appeal on each of the dispositions in this case with an interview that the appeal period for each of the dispositions in this case was over.

[Ground of recognition] Items A, 8, and Eul evidence 1 to 4, and the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff did not operate at all the place of business of this case, and ParkCC lending only the name of the business operator of the above place of business upon request by ParkCC, a person with bad credit standing, in fact, the above place of business

Since the plaintiff was operated, each of the dispositions of this case against the plaintiff was illegal because it did not receive any business income.

3. Related statutes;

It is as shown in the attached Table related statutes.

4. Judgment as to the main claim

A. Whether the service is lawful

In a case where the service of a tax payment notice on a taxation disposition is illegal in violation of the provisions of Article 8(1) of the Framework Act on National Taxes and its effect does not take effect, such a taxation disposition is deemed null and void (see Supreme Court Decision 95Nu3909, Feb. 22, 1995). In addition, we examine whether the pertinent tax payment notice is legally served in accordance with the provisions of the Framework Act

1) The following facts may be admitted in full view of each entry into evidence A, evidence A 2, and evidence Nos. 1-2, 3, and 5, and the purport of the entire pleadings between the Parties:

A) From October 22, 200B, the Plaintiff has been residing in Gyeyang-gu Incheon (OOdong 000 O-dong 000 (hereinafter “the Plaintiff’s domicile”).

B) The Defendant served a tax payment notice of the instant disposition on December 1, 200B, and a tax payment notice of the instant disposition on April 4, 2010 on each Plaintiff’s domicile.

C) On August 6, 2009 and February 20, 2009, the Defendant sent the instant notice of tax payment to the Plaintiff’s domicile by registered mail, but returned to the Plaintiff’s domicile, and the Defendant was unable to serve the notice within the payment period due, and was served by public notice on September 2, 2009.

D) On November 3, 2009, the Defendant served a notice of tax payment of the instant three disposition on November 28, 2009 and December 4, 2009 by registered mail on November 28, 2009 and on December 10, 2009, but it is difficult to serve the notice within the payment period as the result of the return to the Plaintiff’s domicile due to the absence of the recipient, and served by public notice on January 4, 2010.

2) The notice of tax payment must be served on the domicile of the person concerned (Article 8(1) of the Framework Act on National Taxes), and the service by delivery, mail or electronic delivery (Article 10(1) of the same Act). If a person to receive the document is not present at the place where the document is to be served by mail, the document may be served on his employee or other person to be identified as the person to receive the document, and if the person to receive the document or his employee or a person living together with the person to receive the document refuses to receive the document without any justifiable reason, a document may be placed at the place where the document is to be served (Article 10(4)3 of the Framework Act on National Taxes). Meanwhile, Article 11(1)3 of the Enforcement Decree of the Framework Act on National Taxes provides that "the person to receive the document, or his employee or person living together with the person to receive the document, who is not present at the place where the document is to be served by mail but has not been returned by registered mail, and Article 7(1)1(2)1) of the Enforcement Decree of the Framework Act provides that person to receive the document.

B. Whether the disposition is lawful

Where there are objective circumstances to believe that any legal relations or facts which are not subject to taxation are subject to taxation, and whether they are subject to taxation can be identified by accurately investigating the facts, it cannot be said that it is apparent in appearance even if the error of mistake is serious, and where the legal relations or factual relations of the subject of taxation are mistaken and tax is imposed, it cannot be said that the taxation is null and void as a matter of course (see, e.g., Supreme Court Decision 81Nu69, Oct. 26, 1982). As long as the Plaintiff is the nominal owner of BBNM, the issue of whether only the Plaintiff lent the name to the ParkCC can only be identified after accurately investigating the facts, and even if the Plaintiff was unaware of the business of the ParkCC, it cannot be said that the defect of each disposition of this case is apparent, and each disposition of this case cannot be deemed null and void. Therefore, all of the plaintiff's primary claims are without merit.

5. Determination on the conjunctive claim

A. The defendant's main defense

The conjunctive claim part of the lawsuit in this case is unlawful as it is based on the tax proceeding for which the period of request expires.

B. Determination

A lawsuit seeking revocation of a disposition of national tax must be filed within 90 days from the date when the plaintiff becomes aware of the relevant disposition (Article 56(2) of the Framework Act on National Taxes, when the plaintiff is notified of the disposition), and a lawsuit seeking revocation of the disposition must be filed under the Framework Act on National Taxes (Article 68(1) of the Framework Act on National Taxes). However, the fact that the defendant lawfully served the plaintiff with a notice of tax payment of each disposition of this case, and the fact that the plaintiff filed a request for judgment on each disposition of this case only before September 4, 2012 is as seen earlier, and thus, the petition for judgment on each disposition of this case is unlawful. In addition, if the procedure of the previous trial is illegal due to the lapse of the period, the administrative litigation is also inappropriate because it is not possible for the plaintiff to satisfy the requirements of the previous decision, regardless of whether the "justifiable cause as provided in Article 20(2) of the Administrative Litigation Act exists."

6. Conclusion

Then, the plaintiff's conjunctive claim is illegal and dismissed, and the main claim is dismissed as it is without merit. It is so decided as per Disposition.