A. Requirements for invalidity of a taxation disposition due to mistake of facts

B. Application for nullification of partial nullification of the global income tax and partial disposition

A. In a case where a tax authority imposed a tax by mistake of facts, if it is evident that the taxation data, which served as the basis of mistake of facts, lacks the appearance of the taxation data, or is objectively unable to recognize the establishment or the authenticity of the substance thereof, the taxation disposition by recognizing taxable income, based only on such taxation data, is serious, as well as is objectively apparent and invalid.

B. Even in the disposition of imposition of global income tax, if some of the taxable income is clearly recognized by the tax authority, but the remaining income is not legitimate, if it is objectively clear that the defect of the taxable income without permission is objectively apparent, the part concerning the taxable income without permission shall be deemed as invalid as a matter of course, and there is no reason to exclude the claim to nullify the invalidity of some of such disposition.

A.B. Article 1 of the former Administrative Litigation Act (amended by Act No. 3754 of Dec. 15, 1984)

Supreme Court Decision 84Nu286 delivered on September 25, 1984, Supreme Court Decision 84Nu386 delivered on November 12, 1985 (Dong)

Plaintiff

Head of Seodaemun Tax Office

Seoul High Court Decision 78Gu407 delivered on February 29, 1985

The judgment below is reversed and the case is remanded to Seoul High Court.

The plaintiff's attorney's ground of appeal Nos. 3 and 6 is examined.

1. According to the reasoning of the lower judgment, the lower court: (a) deemed that the Plaintiff was an executive officer of Korea, etc. textbooks, high-ranking textbooks, Korea Textbook, and Korea Textbook during the taxation year from 1972 to 1976; (b) deemed that the Plaintiff’s tax evasion was an omission of corporate tax during the taxation year of the above four companies; and (c) deemed that the Plaintiff’s tax evasion was an omission of sales in gross income of the above four companies; and (d) deemed that the Plaintiff’s tax base was an omission of sales of the above four companies; and (e) deemed that the Plaintiff’s bonus and the amount of tax for each of the above four company’s dividends and the amount of tax for each of the above four company’s total income to be disposed of as bonus and the amount of tax for each of the above four company’s total income to be disposed of at least 44,688,952, 1973, 817, 1974, 3971, 1976.

2. The disposition is deemed to be null and void only when the inherent defect in the administrative disposition is serious and objectively apparent. Therefore, in a case where the tax authority rendered a tax disposition by misunderstanding the factual basis as to taxable income based on wrong taxation data even though there is no taxable income, it is generally true that the mistake of factual basis based on such erroneous taxation data is difficult to be deemed null and void as a matter of course because it is not objectively clear.

However, in a case where it is evident that the taxation data, which forms the basis of mistake of facts, lacks appearance or is objectively unable to recognize the authenticity of its establishment or content, the taxation disposition that recognizes taxable income based only on such taxation data, is serious, and is objectively apparent and invalid (see Supreme Court Decision 84Nu286 delivered on September 25, 1984).

Examining the evidence admitted by the court below based on the records, the National Tax Service organized a union investigation team for four companies, including the non-party Korean Text Textbook, etc., and conducted a tax investigation, the above four companies' related books were seized by investigation agencies and 30 representative, officers, and employees, etc. were arrested or detained by investigation agencies. The above union investigation team concluded that the whole amount was attributed to each of the shareholders as bonus or dividends without any specific reasonable and reasonable ground after adding KRW 8,711,942,531 to gross income for each business year of the above four companies, and that the whole amount was attributed to each of the above four companies. Accordingly, the union investigation team prepared a one-day list for calculating the annual income amount and the withholding tax amount for each of the shareholders, and prepared and submitted the list to the National Tax Service Secretariat on April 1977, presenting the contents of the above list to the effect that voluntary report should be made, and if not complied with, it is acknowledged that each of the above shareholders' failure to submit the list of global income tax and the withholding tax amount to the defendant.

If the Plaintiff’s global income tax return or the instant tax disposition, which served as the basis for the instant disposition, was prepared and submitted without any reasonable and reasonable ground against the Plaintiff’s free will due to unilateral and coercive coercion by the tax authorities or their superior authorities, such a report or the instant tax disposition, cannot be deemed as the genuine taxation data in light of the process of preparation. As such, the defect in the instant tax disposition based on such taxation data, as well as the material defect, cannot be deemed as an objective apparent defect in the relationship with the tax authorities that directly participated in the process of establishment of the taxation data as seen above, and thus, it cannot be deemed as an objective apparent defect.

3. Meanwhile, in the disposition of imposition of global income tax, if the part of the taxable income recognized by the tax authority is clearly recognized, but it is objectively evident that there is no legitimate taxation data to recognize the remaining income, the part of the taxable income without the permission should be deemed to be null and void as a matter of course, and there is no reason to exclude the claim for nullification of a part of the disposition of imposition.

In this case, the defendant's disposition of this case, which deemed that the total amount of KRW 8,711,942,531 of the non-party 4 company was attributed to the plaintiff et al.'s shareholders as bonus or dividend income by the return of income amount and the dispatch of the non-party 4 company's sales omission amount against the free will, was due to the non-party 4 company's non-party 8,711,942,531, was due to the plaintiff et al.'s non-party 4's non-party 4's non-party 4's bonus

4. Ultimately, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the invalidation of taxation disposition, which affected the conclusion of the judgment, and it cannot be maintained as it is. Thus, it is reversed the judgment below and remanded to the court below. It is so decided as per Disposition by the assent

Justices Lee Il-young (Presiding Justice) Lee Jong-young (Presiding Justice) shall be unable to affix his/her signature and seal to overseas business trip (Presiding Justice).