Cho Jae-hoon 2017Gu3090 ( August 21, 2017)

It cannot be said that the disposition of this case had gone through legitimate pre-trial procedure, and therefore, the lawsuit of this case is unlawful because it did not go through legitimate pre-trial procedure.

If a request for a trial is unlawful due to the arrival of the deadline for request, it shall not be deemed that the requirements for a pre-trial have been met. Therefore, the lawsuit in this case is unlawful as brought without lawful

Article 55 of the Framework Act on National Taxes

Article 56 of the Framework Act on National Taxes concerning other Acts

2017Guhap765 Disposition of revocation of a comprehensive alcoholic beverage wholesaler's license

Limited Partnership ○○○

○○ Head of tax office

August 30, 2017

September 20, 2017

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

On March 8, 2017, the Defendant’s revocation disposition of revocation of comprehensive wholesale business license against the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff started his business on April 8, 1995 and obtained a license for comprehensive liquor wholesale business (license number ○○○○○) from the Defendant. Since around that time, the Plaintiff engaged in the liquor wholesale business at ○○○-ro 55-gil 12.

B. From September 6, 2016 to November 14, 2016, the director of ○○ Regional Tax Office confirmed that the amount of violation of the duty to receive tax invoices during the taxable period of January 2016 is 12.4% of the total sales of alcoholic beverages and notified the Defendant of such taxation data.

C. Accordingly, on March 8, 2017, the Defendant issued a disposition to revoke the Plaintiff’s comprehensive wholesale business license on the ground that the violation of the duty to issue tax invoices by taxation period under the Value-Added Tax Act constitutes “where the amount of violation of the duty to issue tax invoices by taxation period exceeds 10/100 of the total sales of alcoholic beverages” (hereinafter “instant disposition”), and the said notice was served on the Plaintiff on March 13, 2017.

D. On June 13, 2017, the Plaintiff sought a revocation of the instant disposition to the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s claim on the grounds that the period for request under Article 68(1) of the Framework Act on National Taxes has expired on August 21, 2017.

Facts without any dispute, Gap's 1, 2, 7, 8, Eul's 1 through 3 (including each number; hereinafter the same shall apply), the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the lawsuit of this case is lawful

A. Failure to implement the pre-trial procedure

Article 55 (1) of the Framework Act on National Taxes provides that "any person whose rights or interests have been infringed by being subject to an illegal or unreasonable disposition or by failing to receive a necessary disposition as a disposition under this Act or other tax-related Acts may file a request for examination or a request for adjudication under this Chapter to cancel or modify such disposition, or for a necessary disposition." Article 56 (2) of the Framework Act on National Taxes provides that "Notwithstanding the provisions of Article 18 (1) (main sentence), (2) and (3) of the Administrative Litigation Act, any administrative litigation against an illegal disposition under Article 55 shall not be filed unless a request for examination or a request for adjudgment under this Act and a decision thereon is made under this Act." Article 68 (1) of the Framework Act on National Taxes provides that "an appeal shall be filed within 90 days from the date (if a notice of disposition is received, from

In order to file an administrative suit seeking the revocation of the disposition of this case under the Liquor Tax Act, the Plaintiff must first undergo the procedure of pre-trial such as a request for examination or a request for trial under the Framework Act on National Taxes, and the above request for examination or a request for trial as a procedure for pre-trial trials must be legitimate. However, according to the above facts acknowledged, the Plaintiff filed a request for a trial with the Tax Tribunal on March 13, 2017, when 90 days have elapsed since it was served with the notice of disposition of this case on June 13, 2017, and was made a decision of rejection on the ground of the deadline for request and the deadline for request from the Tax Tribunal on August 21, 2017, and thus, the instant lawsuit was eventually filed without going through a legitimate pre-trial procedure, and is unlawful. The Defendant’s defense

B. Judgment on the Plaintiff’s assertion

1) The Plaintiff is not liable to the Plaintiff for the lapse of the period for filing an administrative appeal as it did not notify the Defendant of the fact that the Defendant cannot file an administrative appeal without going through an administrative appeal, while rendering the instant disposition, and therefore, the instant lawsuit is lawful.

Article 26 of the Administrative Procedures Act provides that "when an administrative agency takes a disposition, it shall notify the parties of whether an administrative appeal, administrative litigation, or other objection may be filed with respect to such disposition, whether the procedure for filing an appeal, the period for filing an appeal, and other necessary matters." Meanwhile, Article 18 (1) of the Administrative Litigation Act provides that "a revocation lawsuit may be filed without going through a case where it is possible to file an administrative appeal with respect to such disposition pursuant to the provisions of other Acts and subordinate statutes: Provided, That this shall not apply to cases where there is any provision that a revocation lawsuit cannot be filed without going through a ruling on an administrative appeal on the disposition: Provided, That the proviso of Article 26 (2) provides that "a revocation lawsuit may be filed without going through a ruling on an administrative appeal if there is any ground falling under any of the following subparagraphs," and subparagraph 4 provides that "other justifiable grounds exist

In full view of the purport of Gap evidence Nos. 1 and the whole arguments, if the defendant raised an objection to the disposition of this case against the plaintiff, the defendant can refer to the time to make a request for examination or a request for adjudgment within 90 days from the date of receipt of the notice of disposition under Article 55 (Appeal) of the Framework Act on National Taxes, and if alcoholic beverages are sold and sold at the time of disposal, it can be acknowledged that the above notice should be punished under related Acts. Thus, it can be viewed that the above notice is an appropriate notification of the procedure for objection such as the procedure for the pre-trial trial under Article 26 of the Administrative Procedure Act, and the plaintiff can be seen that the plaintiff was served with the disposition of this case within 90 days from the date of receipt of the notice of disposition under Article 18 (2) 4 of the Administrative Litigation Act, and that there was no problem in going through the pre-trial trial procedure. Accordingly, the plaintiff's assertion that the lawsuit of this case without legitimate procedure constitutes "when justifiable grounds as provided for in Article 18 (2) 4 of the Administrative Litigation Act."

2) Even if the plaintiff filed an administrative litigation without going through the pre-trial procedure, the defect is cured if it satisfies the requirements of pre-trial until the conclusion of pleadings. Since the plaintiff filed an appeal on June 13, 2017, which was pending in the lawsuit of this case, the defect is cured.However, in such a case, the request for an appeal or a request for a trial should be legitimate, and as seen earlier, it cannot be said that the plaintiff satisfied the requirements of pre-trial dismissal for the reason that the request for a trial was rejected on the ground that the request period was excessive. Accordingly, the plaintiff'

3. Conclusion

Since the lawsuit of this case is unlawful, it is so decided as per Disposition by the assent of all participating Justices.