Suwon District Court-2017-Gu Partnership-474 (Law No. 18, 2017)

The rejection of a request for correction for a return after the deadline is not subject to appeal.

Even if a report after the deadline is filed and a request for correction is filed, it is difficult to see that the tax authority has a legal obligation to answer it, and the notification of the tax authority is merely an act of fact and is not subject to appeal.

Article 45-2 (Request for Rectification)

Seoul High Court-2017-Nu64752 Revocation of the imposition of global income tax

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O Head of tax office

Suwon District Court Decision 2017Guhap474 Decided October 18, 2017

on 28, 2017

October 26, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The part exceeding KRW 237,621 out of the decision of correction of global income tax for the year 2014 rendered by the Defendant to the Plaintiff on June 15, 2016 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, except for the dismissal of some contents and addition of some contents, and therefore, it is identical to the reasoning of the judgment of the court of first instance. Thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

Parts to be removed or added.

○ The second-class 3 through 7 of the judgment of the first instance court are as follows.

A. The Plaintiff is a personal entrepreneur who operates the MFM music institute (hereinafter “the instant private teaching institute”) on the fifth fifth floor in Suwon-si, Suwon-si, Suwon-si, and filed a return after September 16, 2015, based on the estimation of comprehensive income tax for the year of 2014. On October 12, 2015, the Defendant issued a disposition to determine the tax base and tax amount and impose and notify the amount of tax unpaid to KRW 5,623,449 (hereinafter “the initial disposition”). The initial disposition of this case reached the Plaintiff on October 16, 2015.

○ The following shall be added to the third and 18th judgment of the first instance court:

D. 1) The Plaintiff asserts to the effect that filing a civil petition for grievance within the filing period should be deemed an objection under the Framework Act on National Taxes, in light of the fundamental purport of the appeal system for remedying a person whose rights and interests have been infringed due to an illegal or unjust administrative disposition.

2) In any of the following cases, a person who has filed a tax base return by the statutory due date of return pursuant to Article 45-2(1) of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same shall apply) refers to a person who has filed a tax base return by the statutory due date of return may file a request with the head of the competent tax office within five years after the statutory due date of return elapses: Provided, That with respect to increased tax base and amount of taxes due to the determination or correction, a request for correction may be made within 90 days (limited to five years after the date of receipt of the notice of disposition) from the date on which the relevant disposition becomes known (where a notice of disposition is received, within five years after the statutory due date of return expires). Article 45-3(1) of the former Framework Act on National Taxes provides that "when the tax base and amount of taxes recorded in the "tax base return" (referring to the relevant determination or correction, if any) exceeds the tax base and amount to be returned after the due date of return.

Meanwhile, Article 55 (1) of the former Framework Act on National Taxes provides that "any person whose rights or interests are infringed by this Act or other tax-related Acts because he/she has received an unlawful or unreasonable disposition or because he/she has failed to receive a necessary disposition may file a request for the cancellation or modification of such disposition or for a necessary disposition pursuant to the provisions of this Chapter," and Paragraph (3) of the same Article provides that "any person may file an objection pursuant to the provisions of this Chapter before he/she files a request for an examination or adjudgment, except where he/she has to investigate, determine or have received such disposition under paragraphs (1) and (2)." In addition, Article 61 (1) of the former Framework Act on National Taxes provides that "any person shall file an objection within 90 days from the date he/she becomes aware of such disposition (the date he/she receives a notice of disposition)" and Paragraph (2) of the same Article provides that "any person may file a request for an administrative appeal even before the period for decision has elapsed" in the latter part of Article 66 (6).

3) The head of the competent tax office shall determine the tax base and amount of the pertinent national tax pursuant to the tax law, as the filing of a return after the due date is no longer effective, and even if the taxpayer files a return after the due date and pays the tax accordingly, he/she is not in a position to make a revised return or a request for correction. The taxpayer is merely granted an opportunity for additional return and payment in order to partially reduce the burden on non-return and non-payment of penalty taxes. Therefore, even if the taxpayer files a return after the due date and pays the tax accordingly, the tax authority cannot be deemed to have a legal obligation to make legal answers. Therefore, the tax authority’s rejection notice of a tax authority’s request for correction cannot be established on the ground that the tax authority’s request for correction cannot be said to be a disposition subject to appeal merely because it notifies the fact that the tax authority cannot refund it

4) According to the facts acknowledged earlier, the Plaintiff filed a tax return on September 16, 2015 on the basis of the estimation of comprehensive income tax for the year 2014. The Defendant: (a) determined the tax base and tax amount on October 12, 2015 and imposed and notified KRW 5,623,449; and (b) the initial disposition of the instant case reached the Plaintiff around October 16, 2015. Accordingly, where the Plaintiff files an objection pursuant to Article 55(1) of the former Framework Act on National Taxes with respect to the initial disposition of the instant case, the Plaintiff shall file a tax return within 90 days from October 16, 2015, on which the Defendant had known that the initial disposition of the instant case was issued.

In addition, even if the Plaintiff filed a claim for correction of the initial disposition on December 16, 2015, and the Defendant notified the dismissal of this case to dismiss the Plaintiff’s claim on March 22, 2016, the Defendant cannot be deemed to have a legal obligation to answer the Plaintiff’s claim for correction, and thus, the instant dismissal notice is merely a civil petition notification that the Defendant is unable to refund, and cannot be deemed to be a disposition subject to appeal, as it is merely an act of fact, and cannot be deemed a disposition subject to appeal. Since the Plaintiff filed a civil petition for grievance on May 2, 2016, even if the foregoing civil petition for grievance can be seen as a civil petition for grievance, it is difficult to view that the filing of the civil petition for grievance was a legitimate objection, even if the lapse of 90 days from October 16, 2015 when the initial disposition was issued. Therefore, this part of the Plaintiff’s assertion is without merit.

2. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.