Seoul Administrative Court-2017-Gu Partnership-773 ( October 24, 2018)

Cho Jae-2017-west-546 (20 June 20, 2017)

There is no benefit to file a lawsuit seeking confirmation of invalidity against a decision of correction which has only changed the classification of income and has not corrected the amount of tax.

There is no benefit in filing a lawsuit to seek nullification of the decision of correction that did not correct the tax amount on the ground that there is no evidence to acknowledge necessary expenses as a result of correcting the classification of the income amount of the issue from other income to the business income.

Article 68 of the Framework Act on National Taxes

2018Nu6439 The revocation of the disposition of revocation of a global income tax not revised.

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○ Head of tax office

Seoul Administrative Court Decision 2017Guhap78773 decided August 24, 2018

November 23, 2018

January 18, 2019

1.The judgment of the first instance, including any claims added in the trial, shall be modified as follows:

A. The first claim among the instant lawsuit and the second claim are dismissed in entirety.

B. The plaintiff's main claim and the second preliminary claim are dismissed in entirety.

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

(Plaintiff added part of the purport of the claim in the trial).

The judgment of the first instance shall be amended as follows:

In the first place, it is confirmed that there is no separate imposition of global income tax of 000 won (including additional tax) and global income tax of 000 won (including additional tax) for the year 2010, which belongs to the Plaintiff on April 0, 2016.

1. Preliminaryly confirming that each disposition taken by the Defendant against the Plaintiff on August 0, 2016 by global income tax of KRW 000 (including additional tax) and global income tax of KRW 000 (including additional tax) for the year 2010, which reverts to the Plaintiff, is null and void. The disposition taken by the Defendant against the Plaintiff on August 19, 2016 is revoked.

Preliminaryly, on April 0, 2016, the Defendant confirmed that each disposition of imposition of global income tax of 000 won (including additional tax) and global income tax of 000 won (including additional tax) for the year 2010, imposed on the Plaintiff on the Plaintiff is null and void. The Defendant’s disposition of imposition against the Plaintiff on April 0, 2016 is revoked.

1. Quotation of the reasons for the judgment of the first instance;

This decision is based on the reasoning of the judgment of the court of first instance except for dismissal or addition of the following contents among the reasons of the judgment of the court of first instance (excluding paragraph (5)). Thus, this decision is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ 5, 15 pages 15, "preliminary claim", shall be "preliminary claim".

○ 5, 17, 21, 6, and 7, each "the confirmation of invalidity" is considered as "the confirmation or revocation of invalidity".

“The Supreme Court Decision 2007Du5844 Decided May 29, 2008” is considered as “the Supreme Court Decision 2007Du5844 Decided May 29, 2008.”

○ 7 pages 4, 5 are referred to as “the Director of the Tax Tribunal” as “the Tax Tribunal.”

○ 7. The following shall be added to the seven pages:

5. Judgment on the Second Preliminary Claim

A. The plaintiff's assertion

In rendering the instant disposition, the Defendant omitted on-site investigation and estimated investigation as to necessary expenses, and the instant notice does not stipulate at all the tax base, tax rate, amount of tax, and method of appeal, etc., and there are significant and apparent defects in the instant disposition, and thus, the instant disposition is null and void. Even if the level of the domestic defect does not reach the ground of nullification, it constitutes grounds for revocation.

B. Determination on the part of revocation claim among the preliminary claims No. 2

1) As to the Plaintiff’s filing of the revocation of the instant disposition, the Plaintiff did not go through the pre-trial procedure on the instant disposition and did not observe the objection period, the Defendant’s main defense to regard the instant disposition as unlawful.

2) According to the evidence Nos. 4 and 4, the Plaintiff is deemed to have filed a request with the Tax Tribunal for a judgment on the refusal of correction of the instant case. However, the Plaintiff cannot be deemed to have gone through the procedure of a prior trial, such as filing a request for a judgment with the Tax Tribunal on the instant disposition, and it cannot be deemed to have gone through the procedure of the prior trial upon filing a request for correction of the instant disposition against the Defendant.

Therefore, the above main defense of the defendant is justified.

C. Determination as to the part of the claim for nullification confirmation among the preliminary claims No. 2

In a lawsuit seeking the invalidation of an administrative disposition as a matter of course, the Plaintiff is liable to assert and prove that the defect existing in the administrative disposition is significant and apparent (see Supreme Court Decision 82Nu154, Feb. 28, 1984). The evidence and assertion submitted by the Plaintiff alone is insufficient to deem that the defect as alleged by the Plaintiff exists in the disposition of this case and that the defect is serious and obvious (see, e.g., Supreme Court Decision 82Nu154, Feb. 28, 1984).

Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the part of the first preliminary claim and the part of the second preliminary claim are unlawful and all of the claims for revocation are dismissed. The plaintiff's main claim and the second preliminary claim are dismissed in its entirety due to the lack of reasonable grounds. It is so decided as per Disposition by the court of first instance, including the claims added in the trial.