Cho High 2014 Middle 5840 ( November 24, 2014)

A lawsuit seeking the revocation of a disposition without due process of the preceding trial is unlawful.

Where a request for a trial is filed 90 days after the date of service of a written disposition, such request is illegal due to the intention of the deadline for request and the lawsuit seeking the revocation of the disposition is also illegal because it does not go through legitimate procedures for the prior trial.

Article 8 of the Framework Act on National Taxes

revocation of revocation of imposition of value-added tax, etc. in Suwon District Court 2014Guhap5949

Kim △△△

1. ▲▲세무서장

2. ○○ head of tax office.

October 6, 2015

November 24, 2015

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

피고 ▲▲세무서장이 원고에게 한 부가가치세 150,892,940원의 부과처분 및 피고 ○○○세무서장이 원고에게 한 종합소득세 175,147,090원의 부과처분을 각 취소한다.

1. Basic facts

A. On June 14, 2011, in relation to ○○○-dong ○○-dong ○○○○○-dong ○○○○○○○-dong, the business entity that runs construction machinery rental business, etc. (hereinafter “instant business entity”), the business registration was completed under the Plaintiff’s name.

나. 이 사건 사업체의 영업과 관련하여 원고의 명의로 2011년 제1기분부터 2013년 제2기분까지의 부가가치세 신고가 이루어졌는데, 원고의 사업장 소재지를 관할하는 피고 ▲▲세무서장은 아래 표 기재와 같이 원고에게 부가가치세를 예정고지하거나 신고 후 해당 세액이 납부되지 아니한 부가가치세를 납부고지하였다.

No.

Taxation Period

Date of Notice

Grounds for Notification

The notified tax amount (cost)

1

No. 1 (Finality) of 2011

January 12, 2012

Payment Notice with no tax payable

3,479,370

2

Second (Final) of 2011

March 9, 2012

Payment Notice with no tax payable

1,894,710

3

First (Scheduled) of 2012

April 7, 2012

Notice of Estimated Notice

1,718,000

4

First (Finality) of 2012

August 14, 2012

Payment Notice with no tax payable

10,030,000

5

First (Finality) of 2012

September 12, 2012

Payment Notice with no tax payable

15,457,350

6

Second (Final) of 2012

March 8, 2013

Payment Notice with no tax payable

66,342,560

7

First (Scheduled) of 2013

June 6, 2013

Payment Notice with no tax payable

4,960,540

8

No. 1 (Finality) of 2013

September 6, 2013

Payment Notice with no tax payable

53,541,450

9

Second Term (Final Term) of 2013

March 8, 2014

Payment Notice with no tax payable

897,610

The aggregate of notified tax amounts

158,321,590

C. In addition, in relation to the business of the instant company, the Plaintiff filed a global income tax return for the year 2012 and 2013 under the Plaintiff’s name. Defendant ○○○○○○ Tax Office having jurisdiction over the Plaintiff’s domicile issued a notice of interim prepayment of global income tax or a notice of payment of the global income tax for which the relevant tax amount was not paid after filing the said notice (hereinafter collectively referred to as the “each of the instant dispositions”).

No.

Taxation Period

Date of Notice

Grounds for Notification

The notified tax amount (cost)

1

2012 Reversion of year 2012

October 14, 2013

Payment Notice with no tax payable

72,726,920

2

2012 Reversion of year 2012

November 7, 2013

Payment Notice with no tax payable

73,042,00

3

2013 Reversion of year 2013

(Interim Prepayment)

January 13, 2014

Notice of Estimated Notice

10,111,00

The aggregate of notified tax amounts

155,879,920

D. On November 7, 2014, the Plaintiff dissatisfied with each of the dispositions in this case and filed a request for a trial with the Tax Tribunal on November 7, 2014. However, on December 24, 2014, the Tax Tribunal rendered a decision to dismiss the request on the ground that the Plaintiff’s request for a trial was filed with the lapse of the appeal period.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2, 4, 6, 7 (including paper numbers) and the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendants' assertion

The Plaintiff’s lawsuit seeking revocation of each of the above dispositions on the ground that Kim Man legal entity borrowed and operated the Plaintiff’s name, and the Plaintiff filed a value-added tax and comprehensive income tax return on the operation of the business entity in this process, and the Defendants actually received each of the dispositions of this case from the Defendants is Kim Man legal entity, not the Plaintiff, and the Plaintiff’s objection period cannot be deemed to have been served on the Plaintiff. The Defendants asserted that each of the dispositions of this case was lawfully served on the Plaintiff at the time of the notification date, and that the Plaintiff filed an appeal with the Tax Tribunal of the lawsuit, which was unlawful.

B. Determination

1) According to Article 68(1) of the Framework Act on National Taxes, in order for a person dissatisfied with a disposition of national tax to file an appeal for revocation or modification thereof, the person shall file an appeal with the Director of the Tax Tribunal within 90 days from the date the person becomes aware of the disposition (if the person is notified of the disposition, the date the person becomes aware of the disposition," and "the date the person becomes aware of the existence of the disposition," means the date when he actually becomes aware of the fact that the disposition was made by the notice, public notice, and other methods. However, in cases where a person other than the party to the disposition or the person who is provided to receive the notice of the disposition in accordance with the Acts and subordinate statutes files an appeal, the period shall be calculated as of the date when the notice of the disposition is received

In addition, in cases where a person to receive documents, such as a person liable for tax payment, who is the other party to a taxation, has expressly or explicitly delegated the right to receive postal items and other documents to another person, such delegated person shall be deemed to have lawfully served the documents on the person to receive the documents upon receipt of the documents concerned (see, e.g., Supreme Court Decision 98Du1161, Apr. 10, 1998). The delegated person is not necessarily required to be an employee of the delegating person or a person living together with the other person (see, e.g., Supreme Court Decision 98Du17074, Mar. 10, 200). In this regard, Article 8(4) of the Framework Act on National Taxes provides that “where a tax manager exists, documents concerning notification and demand of tax payment shall

2) According to the overall purport of the statements and arguments on this case’s health team, Eul’s evidence Nos. 1 through 5, and evidence Nos. 8 through 11 (including paper numbers), Kim Wil’s name on June 14, 201 with the Plaintiff’s consent and approval, and the Plaintiff registered the business with respect to the instant company under the Plaintiff’s name on June 14, 201, and completed the report of the establishment of a tax manager with the Plaintiff’s certificate of personal seal issued from the Plaintiff on July 1, 201, who is a tax manager for the payment of value-added tax on the company’s company as the corporation of △△ Heavy. The Defendants’ notice of payment related to value-added tax in each of the dispositions of this case was sent to the e-mail address of the company of △△△ which is a tax manager on the date of the foregoing notice, and the notice of payment related to global income tax was sent to the Plaintiff’s domicile on the date of each notice, and completed all of its arrival until January 2014.

Examining the above facts in light of the legal principles and the provisions of the law as seen earlier, the Plaintiff may be deemed to have delegated the authority to receive taxes imposed in relation to the operation of the instant company to Kimkn legal entity or △△ Heavy Co., Ltd. Therefore, each of the instant dispositions shall be deemed to have been legally delivered to the Plaintiff upon receipt by the Plaintiff, by March 13, 2014, of the payment notice of taxes imposed by the Plaintiff in relation to the operation of the instant company.

However, the fact that the plaintiff filed a request with the Tax Tribunal for the cancellation of each of the dispositions of this case on November 7, 2014, which is apparent in fact that 90 days have passed since the above service date was served by the court. Thus, the plaintiff's above request for a trial is deemed unlawful due to the intention of the request period, and the lawsuit of this case seeking the cancellation of each of the above dispositions is also unlawful since the plaintiff did not go through legitimate procedure of a prior trial.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case against the defendants is unlawful, and it is so decided as per Disposition.