Seocho 2010west 2632 ( October 11, 2010)

The period of filing a lawsuit is illegal because it is illegal and void.

Since the 90-day period from the day on which a written decision on adjudication was served, the lawsuit is dismissed as illegal because it exceeds the period of filing the lawsuit.

2011Revocation of revocation of the imposition of value-added tax

Dogsung, Inc.

○ Head of tax office

May 17, 2011

June 2, 2011

1. The instant lawsuit shall be dismissed.

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

The Defendant’s imposition of value-added tax of KRW 48,434,940 for the second period of 2004 on January 11, 2010, the imposition of KRW 202,38,160 for the second period of 2004, and the imposition of KRW 2,344,460 for the second period of 205 as of January 18, 2010, respectively, shall be revoked.

1. Basic facts

A. The Plaintiff is a business operator who has been engaged in clothing manufacturing business, etc. in Seoul BB-GuCC 250-3 DDDD Non-dong 802.

B. In filing each return of value-added tax and corporate tax for the year 2004 and 2005 against the Plaintiff, the Defendant issued each imposition disposition stated in the purport of the claim (hereinafter “each of the instant dispositions”) on the ground that “the Plaintiff received a processing tax invoice from EEE, FFF, and GGG from the EE, FF, and GGGG without a real transaction.”

C. On July 22, 2010, the Plaintiff appealed and thereafter filed an objection (the Defendant dismissed the Plaintiff’s objection on April 29, 2010), appointed an attorney Kim H as his/her agent, and filed a request for a trial with the Tax Tribunal.

D. On October 11, 2010, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s request, and on October 14, 2010, the said decision was served by means of registered mail at the office of Kim H’s attorney-at-law located in JJ-dong, Seoul JJ-dong, JJ-dong, 1557-20, by using the receiver Kim H as the addressee on October 14, 2010, and at the time, Lee K, who is the partner of the workplace of Kim H, received this from the above office.

E. The Plaintiff filed the instant lawsuit on January 13, 201.

Facts that there is no dispute over the basis of recognition, Gap 1, 4, 5, Eul 8, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The Plaintiff filed the instant lawsuit only from October 14, 201 to October 13, 201, which was notified by the Tax Tribunal of the decision of inquiry regarding each of the instant dispositions, as it had been done on the same day from October 14, 201 to October 13, 201. Thus, the instant lawsuit is unlawful as it exceeds the filing period.

B. Determination

1) Article 56 of the former Framework Act on National Taxes (amended by Act No. 101405, Dec. 27, 2010; hereinafter the same) provides that an administrative litigation shall be filed within 90 days from the date the decision on a request for examination or adjudgment is notified (main sentence of paragraph (3) and that the period under paragraph (3) shall be a peremptory term (Paragraph (5). Article 59 of the same Act provides that an applicant for objection, a claimant for examination or a claimant for adjudgment, or a disposition agency may appoint a certified public accountant registered pursuant to Article 20-2(1) of the Certified Tax Accountant Act as his/her agent (Paragraph (1)), and an agent may perform any act that causes the reproduction of the request for examination or adjudgment on behalf of the person in question. However, it shall be limited to cases where a special delegation is made to the effect that the request for examination or adjudgment

Meanwhile, Article 8(1) of the former Framework Act on National Taxes provides that documents under this Act or other tax-related Acts shall be served on the domicile, temporary domicile, place of business or office of the designated person (referring to the person designated as the recipient). Article 10 of the same Act provides that service of documents under Article 8 shall be made by means of delivery, mail or electronic delivery (Article 8(1)), and service of documents related to notice of tax payment, demand, disposition on default, or governmental order under tax-related Acts by mail shall be made by registered mail (main sentence of paragraph (2)), and in the case of Article 10(2), service of documents may be made by a person to receive documents at the place to be served by mail (the former part of paragraph (4)).

2) Examining the above facts in light of the above provisions, it is reasonable to view that the authority of Kim H, an agent of the Plaintiff, includes the authority to receive the judgment decision from the Tax Tribunal as a matter of course. It is reasonable to see that this KR, upon receipt of the said judgment decision at the attorney-at-law office of Kim LL, constitutes an employee or other employee of Kim H as prescribed in Article 10 subparag. 4 of the former Framework Act on National Taxes, who is capable of identifying objection, and thus, is entitled to receive the said judgment decision instead of Kim H. As such, the said judgment decision should be deemed to have been duly delivered to the Plaintiff at the time this KR received the said judgment decision. However, the Plaintiff filed the instant lawsuit on Oct. 14, 201, which is apparent that the said judgment decision became 90 days from Oct. 14, 2010, which was delivered to this KR. Thus, the instant lawsuit is unlawful as it exceeds the period of filing the lawsuit.

3) As to this, the Plaintiff asserted that, at the time of service of the written decision on the instant case, EM and his agent Kim H were staying in Korea, both of the Plaintiff’s representative director, EM and his agent Kim H were staying in Korea, and the notification of the said written decision on the instant case was not known. Since EM was able to be aware of it on October 23, 2010, it was impossible for the Plaintiff to observe the filing period due to any cause not attributable to the Plaintiff, and accordingly, the filing period of the instant lawsuit ought to proceed from October 23, 2010.

In light of the above, the Plaintiff’s assertion that the Plaintiff cannot be deemed to fall under a case where the Plaintiff could not observe the peremptory period due to a cause not attributable to the Plaintiff, and thus, the Plaintiff’s assertion is without merit. The Plaintiff’s assertion is without merit. In light of the above, the Plaintiff’s assertion cannot be deemed to be a case where the Plaintiff could not observe the peremptory period due to a cause not attributable to the Plaintiff.

3. Conclusion

The instant lawsuit is unlawful and thus dismissed.