early 2010 Heavy2429 ( October 10, 201)

Notice of refusal to refund value-added tax return is not a disposition subject to administrative litigation.

The notification of refusal of refund is merely a refusal of refund of input tax amount, and there is no other evidence to prove that the refund amount was reduced through the decision of correction or that the notification of payment of value-added tax was made, so the notification of refusal of refund of value-added tax cannot be deemed a disposition subject to administrative litigation

Article 24 (Refund of Value-Added Tax Act)

Article 72 (Refund of Value-Added Tax Act)

2011Guhap851 Disposition of revocation of a disposition of revocation of a tax deduction for value-added tax

XX Kim

The Head of Hongcheon Tax Office

October 28, 2011

December 9, 2011

1. The case shall be dismissed.

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

The Defendant’s disposition of deducting the purchase tax amount of KRW 350,360,000 on March 15, 2010 against the Plaintiff on March 15, 2010 is revoked (it appears that March 15, 2009, which is the date stated in the written claim of the complaint, appears to be a clerical error).

1. Basic facts

A. The Plaintiff’s trade name on May 27, 2008: the Plaintiff’s business registration was made for the Defendant on March 2, 2008, the date of opening the business, the location of the establishment of the business: on March 2, 2008, the number of Gangwon Hongcheon-gun’s written digging business 300-2, and on October 21, 2009, the trade name: Mamland, the opening date of the business: the size of May 10, 2008, the location of the business was 100-8,000 Won Hongcheon-gun’s written digging business.

B. On September 30, 2009, the Plaintiff issued a tax invoice with supply value of KRW 3,000,000,000 from BC Construction, with each other of the beneficiaries, with supply value of KRW 465,60,000 from BGN, with supply value of KRW 465,60,000 from BGN, with each other of the beneficiaries, with supply value of KRW 38,00,00,000 from the supply value of KRW 38,00,00,000 from BPD, and with each other, with each other of the beneficiaries, respectively.

C. On January 25, 2010, the Plaintiff filed a return on the refund of value-added tax for the second period of 2009 based on the tax invoice delivered to the Defendant. On March 15, 2010, the Defendant issued a notice that the tax invoice on September 30, 2009 differs between the time when the service is supplied and the time when the tax invoice is issued, and the amount on the tax invoice differs, and there is a substantial difference between the amount on the tax invoice and the appraisal. Each tax invoice on October 30, 2009 and December 8, 2009, on the ground that it is not related to the construction of the building in question (hereinafter “instant notice of refusal of refund”).

D. On July 14, 2010, the Plaintiff was dissatisfied with the instant notice of refusal to refund and requested an inquiry to the Tax Tribunal, but was dismissed on February 10, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, 4, 6, 10, 13-1, Eul evidence 2-3, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The parties' assertion

The plaintiff asserts that the input tax should be deducted because the tax invoice dated October 30, 2009 and December 8, 2009, respectively, is the tax invoice for construction machinery rent, so the input tax deduction should be made, and the tax invoice dated September 30, 2009, which was made through a real transaction, is different from the time of supply for services and the time of delivery of the tax invoice due to the dispute between the parties concerned, and the amount is not much different from the actual appraisal. In light of the fact that the tax invoice was made through a real transaction, the plaintiff asserts that the input tax deduction should be made, since the notification of refusal to refund was not a disposition under the Administrative Litigation Act, it is not a disposition under the Administrative Litigation

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

In cases where the tax authority rendered a decision of correction that reduces the amount of refundable tax or increases the amount of refundable tax pursuant to Article 21(1) of the Value-Added Tax Act on the grounds that there are omissions and errors in the initial tax base and amount of refundable tax or the amount of refundable tax, etc., the confirmation of tax liabilities arising from the initial return cannot no longer be maintained. Thus, a taxpayer may file an appeal suit seeking revocation of the decision of correction if he/she is dissatisfied with the decision of correction of the tax authority and is to receive the amount of refundable tax originally reported. However, even in the case of the Plaintiff’s assertion, there is no evidence to prove that the Defendant simply refused refund of the amount of refundable tax or notified the payment of value-added tax. Furthermore, according to Article 24 of the Value-Added Tax Act and Articles 72 and 73 of the Enforcement Decree of the Value-Added Tax Act, the head of a tax office provides that the amount of refundable tax on the pertinent taxable period shall be refunded to an entrepreneur within a certain period after the final return period for each taxable period expires, but each of the above provision does not affect the decision of refund.

Therefore, the defendant's refusal notice of refund of this case cannot be considered as a disposition subject to administrative litigation, so even if the plaintiff has a right to claim the refund under the Value-Added Tax Act, the plaintiff cannot seek the cancellation of the notification of refusal of refund of this case by administrative litigation, aside from seeking the return directly by civil litigation.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful, and it is so decided as per Disposition by the assent of all participating Justices.