2012west 4378 ( December 04, 2012)

The part seeking revocation of the disposition of imposition against the second taxpayer is illegal because it was filed without going through legitimate procedures of the preceding trial.

The first disposition against the instant company is a disposition of imposition on the principal taxpayer, and the second disposition against the Plaintiff is a disposition of imposition on the secondary taxpayer. The Plaintiff did not go through the previous trial procedure against the second disposition, and thus, the instant lawsuit is unlawful.

2013Guhap8073 Revocation of Disposition of Imposition of Value-Added Tax

United StatesA

Head of the District Tax Office

October 25, 2013

November 22, 2013

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The imposition of value-added tax on October 23, 2012 by the Defendant against the Plaintiff is revoked.

1) This is an amount calculated by adding additional OOO and increased additional OOOO won to value-added tax OOO directors.

1. Details of the disposition;

A. BB Co., Ltd. (hereinafter “instant company”) is a company that has been engaged in online information production business, etc. from October 29, 2001 to March 25, 201.

B. On April 17, 2012, the Defendant issued a notice of correction and notification of the OOOO of the value-added tax for the first term of January 2005 to the instant company (hereinafter “the instant first disposition”). The instant company did not pay the value-added tax, and was dissatisfied with the instant first disposition, and filed a petition for adjudication with the Tax Tribunal on October 8, 2012 after filing an objection on June 5, 2012, the said claim was dismissed on December 4, 2012.

C. According to Article 39 of the former Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013; hereinafter “former Framework Act on National Taxes”), the Defendant, which determined the Plaintiff as the oligopolistic shareholder (60%) of the instant company, designated the Plaintiff as the secondary taxpayer for the amount of delinquent tax pursuant to Article 39 of the former Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013; hereinafter “former Framework Act on National Taxes”). On October 23, 2012, the Defendant notified the Plaintiff of payment and 2 of the value-added tax amount for the first period of 105 (=OOO x 60%, and the prime unit

D. On October 23, 2012, the Defendant served a notice of payment by mail, but returned on October 31, 2012 and served it by public notice on November 13, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 12, 13, Eul evidence Nos. 1, 7, 9 through 12, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The part seeking revocation of the second disposition of this case

2) According to Articles 56(2), 61(1), and 68(1) of the former Framework Act on National Taxes, an administrative litigation seeking cancellation of the second disposition of this case cannot be filed without going through a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon. The said request for evaluation or adjudgment shall be filed within 90 days from the date (the date of receipt of a notice of disposition, if a notice of disposition is received) on which the pertinent disposition is known. Even if the Plaintiff’s assertion is made, the Plaintiff was aware of the second disposition in June 28, 2013, and the Plaintiff did not file a request for evaluation or adjudgment on the second disposition of this case even until the closing of pleadings of this case where 90 days have passed from the date on which the Plaintiff filed a request for evaluation or adjudgment on the second disposition of this case. Thus, the part seeking cancellation of the second disposition of this case among the lawsuit of this

3) As to this, the Plaintiff asserts to the effect that the instant company may file a lawsuit seeking revocation of the instant second disposition even without going through the pre-trial procedure for the instant second disposition, insofar as the instant company underwent the pre-trial procedure for the instant first disposition. However, in full view of the following circumstances revealed by adding up the aforementioned evidence and the overall purport of pleadings, it cannot be deemed that justifiable grounds exist to file a lawsuit seeking revocation of the instant second disposition even without going through the pre-trial procedure for the instant second disposition. Thus, the Plaintiff’s above assertion is without merit.

A) In the tax administration, two or more administrative dispositions for the same purpose were conducted in the stages of step and two development, and are related to each other, in which the tax authority changed the taxation disposition subject to such disposition during the course of a tax litigation and the grounds for illegality are common, or in the case where several persons are subject to the same obligation by the same administrative disposition through the same administrative disposition, one of the persons liable for tax payment has given the National Tax Service and the Tax Tribunal an opportunity for re-determination of the basic facts and legal issues, such as when one of the persons liable for tax payment or the former has gone through legitimate pre-trial procedure, and in the event that there are justifiable reasons such as where the taxpayer seems to be harsh to have caused the latter to go through the pre-trial procedure, the taxpayer may file an administrative lawsuit claiming the revocation of the taxation disposition even without going through the pre-trial procedure (see Supreme Court Decision 2005Du10170, Apr. 14,

B) The first disposition against the instant company is a disposition of imposition on the principal taxpayer, and the second disposition against the Plaintiff is a disposition of imposition on the secondary taxpayer based on the delinquency, etc. of the principal taxpayer. However, in order to establish the second tax liability, the occurrence of the fact that falls under the requirements, such as the principal taxpayer’s delinquency, etc., and the period of exclusion from imposition is proceeding separately from the main tax liability regarding the second tax liability, and the second tax payment notice against the secondary taxpayer is a disposition of imposition on the principal taxpayer separate from the disposition of imposition on the principal taxpayer (see Supreme Court Decision 2006Du11750, Oct. 23, 2008).

Therefore, the first disposition and the second disposition of this case are two or more administrative dispositions for the same purpose in phases and two development processes, and they are not related to each other. It does not constitute a case where the tax authorities changed the taxation disposition, and do not constitute a case where several persons are subject to the same obligation by the same administrative disposition.

C) In the case of a request for review or adjudgment seeking revocation of a disposition of imposition on the secondary taxpayer, the issue is whether the disposition of imposition on the primary taxpayer is unlawful or not, and whether the primary taxpayer's property is insufficient to cover the national tax to be imposed on or paid by the primary taxpayer, or whether the primary taxpayer's property is the secondary taxpayer. Therefore, even if the Commissioner of the National Tax Service and the Tax Tribunal granted the secondary taxpayer an opportunity to determine the disposition of imposition on the primary taxpayer, if there is a dispute over the disposition of imposition on the secondary taxpayer, it is necessary to give the Commissioner of the National Tax Service and the Tax Tribunal an opportunity to determine such disposition.

In the case of this case, since the plaintiff only contests the illegality of the first disposition of this case, the issue of the dispute over the first disposition of this case and the dispute over the second disposition of this case may be judged to be the same. However, the decision of whether the second disposition of this case should go through the procedure of the previous trial depending on what claim the plaintiff claims may be. In addition, Article 56(2) of the Framework Act on National Taxes requires that the procedure of the previous trial be followed in principle, and therefore, Article 56(2) of the Framework Act on National Taxes requires that the legitimate grounds for filing an administrative lawsuit seeking the revocation of the tax disposition without going through the procedure

D) In certain cases, allowing the Commissioner of the National Tax Service or the Tax Tribunal to institute an administrative litigation seeking the revocation of taxation without going through the procedure of the preceding trial as prescribed by the Framework Act on National Taxes is limited to cases where it is not necessary to repeat the procedure of dance by making a decision on the same issue. In the instant case, the instant company requested an adjudication to the Tax Tribunal on the instant first disposition at the time when the notice of the second disposition was given to the Plaintiff, and the relevant decision was not yet made.

In addition, even if the Defendant served a notice of payment on the second disposition by public notice and the Plaintiff was unaware of the second disposition of this case until June 28, 2013, the Plaintiff could file a request for examination or a request for judgment on the second disposition of this case within 90 days from the date on which the Plaintiff became aware of the second disposition of this case, and thus, it cannot be deemed harsh that the Plaintiff caused the Plaintiff to go through the procedure for the second disposition of this case.

B. The portion seeking revocation of the imposition of additional dues and increased additional dues

ex officio, we examine the legitimacy of the part seeking revocation of the imposition of additional dues and increased additional dues among the instant lawsuit.

If a national tax is not paid by the due date, a notice of a surcharge or increased surcharge is naturally generated by a legal provision without a final procedure by the competent tax office (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, the part seeking revocation of a surcharge or increased surcharge among the instant lawsuit is unlawful.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.