National Tax Service Review Division 2012-0079 (2012.09)

The imposition of penalty tax by stating only the sum without disclosing the type of penalty tax and the basis for calculation is illegal.

The notice of tax payment does not specify the basis for calculation of each additional tax, and it does not specify the calculation amount and details of the additional tax in the notice of tax payment. As such, there are defects such as omitting matters to be stated in the relevant Acts and subordinate statutes.

Article 9 of the National Tax Collection Act

2012 disposition of revocation of imposition of value-added tax, 33898

The AA

Head of Eastern Tax Office

November 21, 2012

December 7, 2012

1. The Defendant’s imposition of KRW 000 of the value-added tax on September 16, 201 against the Plaintiff on September 16, 201 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the plaintiff, and the remainder by the defendant.

The judgment as referred to in Paragraph 1 and the defendant's imposition of value-added tax of KRW 000 on September 16, 201 against the plaintiff on September 16, 201 shall be revoked.

1. Details of the disposition;

A. On July 20, 2004, the Plaintiff was awarded a contract with the Gangdong-gu Seoul Metropolitan Government OOdong 00 neighborhood living facilities and new housing construction works with the construction cost of 000 won (including value-added tax), and completed the construction on November 2004, and did not report and pay value-added tax.

B. On September 16, 201, the Defendant imposed and notified the Plaintiff on the grounds that “the value-added tax was not reported and paid even after the provision of construction services,” and that “the value-added tax was not reported and paid,” and “the value-added tax was KRW 000,000, and KRW 000,000,000,000,000,000,000,000,000,000,000,000,000).

C. The Plaintiff filed an objection on December 13, 201, and received a decision of dismissal from the director of the Seoul Regional Tax Office on February 24, 2012. The Plaintiff filed a request for examination on May 30, 2012, and received a decision of dismissal from the Commissioner of the National Tax Service on July 9, 2012.

[Fact that there has been no dispute] The entries in Gap evidence 1 through 4 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) BB agreed to bear value-added tax, and thisCC, the contractor, BB, or the owner, is liable to pay value-added tax. Therefore, the instant disposition that the Plaintiff is liable to pay value-added tax is unlawful.

(2) Since the five-year exclusion period was set, the instant disposition was unlawful.

(3) The imposition of penalty tax in the instant disposition is unlawful since only the sum of the tax payment notice without disclosing the type of penalty tax and the calculation basis thereof.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The Plaintiff drafted a contract agreement with BB as follows:

(A) the following contract is omitted:

(2) The Plaintiff and BB drafted the following special specifications in accordance with Article 29 of the contract agreement:

(Omission of Special Purpose Specifications)

[Recognition] The non-contentious facts, Gap evidence No. 3, and the purport of the whole pleadings

D. Determination

(1) As to the first argument

(A) Article 2(1) of the Value-Added Tax Act (amended by Act No. 9268, Dec. 26, 2008; hereinafter the same) provides that "a person who supplies goods or services independently from a person liable to pay value-added tax" refers to a person who provides goods or services in the form of a business to an extent that a value-added tax can be created and provided continuously and repeatedly with intent to create a value-added (see, e.g., Supreme Court Decisions 92Nu525, Jul. 24, 1992; 93Nu1053, May 11, 1993). In addition, Article 7(1) and (3) of the Value-Added Tax Act provides that "the supply of goods or services shall be deemed to have provided goods, facilities, or rights by any contractual or legal reason, but the supply of services to another person without receiving any price shall not be deemed to have been the supply of services through an employment relationship with the other person."

(B) In the event that the instant case was drawn up in writing between the parties to a contract and health group, and (i) the objective meaning of the text is clear, and unless there are special circumstances, the existence and content of the expression of intent should be recognized as follows (see, e.g., Supreme Court Decision 2000Da72572, May 24, 2002). According to the contract and special agreement drawn up between the Plaintiff and BB, the Plaintiff would receive the payment from BB, and the Plaintiff would be providing the construction services independently upon being awarded a contract for the construction of the building. (ii) there is no other evidence to deem that the Plaintiff did not receive the payment from BB, or that the contractor provided the construction services under being employed by BB, even if the contractor agreed to pay the value-added tax, this is merely a debt and debt agreement between the parties to the contract, and a person who provided the construction services is a contractor, and it is reasonable to deem the contractor and the contractor as the contractor under the statutory duty payer, and the Plaintiff’s assertion is reasonable.

(2) As to the second argument

Since the Plaintiff did not report the value-added tax for 2004 within the statutory due date of return, the exclusion period of imposition is seven years pursuant to Article 26-2(1)2 of the Framework Act on National Taxes (amended by Act No. 7329, Jan. 5, 2005). The Defendant issued the instant disposition on September 16, 201, which was seven years before the date on which the value-added tax may be imposed for 2 years from January 26, 2005 (the day following the statutory due date of return), and the exclusion period of imposition was not excessive. Accordingly, the Plaintiff’s above assertion on the premise that the exclusion period of imposition is five years is without merit.

(3) As to the third argument

(A) When a single tax payment notice imposes both the principal tax and the additional tax, the tax amount and the calculation basis thereof should be stated in the tax payment notice separately, and when multiple kinds of additional tax are to be imposed, it is clear that the taxpayer can per se know the details of each taxation disposition by classifying the tax amount and the calculation basis thereof by different types of additional tax. As such, where a tax payment notice is the imposition of additional tax, and only the total amount of additional tax is indicated without disclosing the type thereof and the calculation basis thereof (see Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012). However, even if there is any defect in which matters required by related Acts and subordinate statutes are omitted, if it is evident that the taxpayer has already entered all necessary matters in the notice of tax payment notice, etc. sent to the taxpayer prior to the tax payment notice, and it does not interfere with the determination of objection against the disposition and appeal at all, the defect of the tax payment notice can be corrected or cured (see Supreme Court Decision 2012Du3979, Mar. 89, 2019, 2019).

(B) In full view of the health stand, Gap evidence Nos. 2, and Eul evidence No. 1-2, the tax payment notice contains only the total amount, without distinguishing between the business operator registration tax, the additional tax on negligent tax returns, and the tax payment in good faith from each other, and it can be recognized that the basis for calculation of each of the above additional tax is not stated in the notice of tax assessment, and that the amount of calculation of additional tax and the details are not stated in the notice of tax assessment. Thus, there is no circumstance that the tax payment notice of additional tax is defective, such as omitting the matters required by the relevant Act and subordinate statutes, and that the defect has been corrected or cured (the defendant asserted that the notice was verbally directed, but there is no evidence to support it). Accordingly, the imposition of additional tax in the instant disposition is unlawful, and the plaintiff's

3. Conclusion

Therefore, the plaintiff's claim is reasonable within the above recognized scope, and the other claims are dismissed as there is no reasonable ground, and it is so decided as per Disposition.