Incheon District Court-2017-Gu Partnership-50786 (2018.05)

Cho Jae-2013-2260 (No. 22, 2017)

A duplicate tax investigation is illegal but not invalid.

Re-audit of the same tax item and taxable period as the primary tax investigation is illegal unless there are special circumstances exceptionally permitted. Although the defects of the duplicate tax investigation constitute a serious procedural defect, it is merely a re-audit under the audit and cadastral records, and it does not constitute grounds for invalidation merely because it simply provides an opportunity to vindicate without receiving new taxation data.

Article 81-4 of the Framework Act on National Taxes (Prohibition of Abuse of Right of Tax Investigation)

Incheon District Court 2018Nu5962 Revocation, etc. of Disposition of Corporate Tax Imposition

O Co., Ltd.

O Head of tax office

November 09, 2018

December 21, 2018

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

In the first place, the Defendant imposed corporate tax on the Plaintiff for the business year 2007, KRW 19,432,250, KRW 110,158,00, corporate tax for the business year 2008, KRW 174,572,680, corporate tax for the business year 2009, KRW 49,270, KRW 180, KRW 180, KRW 46,273,260, KRW 207, KRW 73,615, KRW 780, KRW 38, KRW 208, KRW 38, KRW 208, KRW 365, KRW 208, KRW 208, KRW 365, KRW 208, KRW 365, KRW 207, KRW 209, KRW 365, KRW 208, KRW 208, KRW 209, KRW 367,209, and KRW 36475,201.

2. Purport of appeal

The judgment of the court of first instance is revoked with respect to the primary claim. It is confirmed that the defendant's imposition of each corporate tax against the plaintiff, imposition of value-added tax, and notification of change in income amount are invalid.

1. Quotation of judgment of the first instance;

The reasons why the court should explain this case are as follows: "attached sheet" in the 3th, 7th, 5th, 6th and 2th of the judgment of the court of first instance shall be read as "attached sheet"; "amount omitted in sales" in the 4th and 13th of the 4th shall be read as "amount omitted in domestic sales"; "each disposition of this case" in the 6th and 6th of the 6th of the 6th shall be changed as "the disposition of this case"; "the 9th to 16th of the 9th and the 16th of the 9th shall be changed as "the 9th"; "the 13th of the 13th of the judgment of the court of first instance" shall be added to "the 5th of the 5th of the judgment of the court of first instance"; therefore, it shall be cited as "the 1, 2th of the grounds for the judgment of the court of first instance" in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420

2. The changed part

Unless there are special circumstances, such as that the assessment conducted based on a reinvestigation prohibited under Article 81-4(2) of the former Framework Act on National Taxes is merely a case where the error of the initial taxation is corrected, it is unlawful in itself. This does not mean that the taxation authority does not regard the taxation data obtained by a reinvestigation as the ground for or excludes the taxation data, but the same taxation is possible (see, e.g., Supreme Court Decision 2016Du55421, Dec. 13, 2017). In a case where the assessment is just to correct the error of the initial taxation regardless of the reinvestigation, regardless of whether the reinvestigation is unlawful (see, e.g., Supreme Court Decision 2010Du6083, Jan. 27, 2011).

3. Additional parts

In addition, in cases where an administrative disposition was taken by applying a certain provision of a law to a certain legal relationship or fact-finding, the legal doctrine clearly stating that the provision of the law is not applicable to such legal relation or fact-finding, and thus, if an administrative agency takes the disposition by applying the above provision even though there is no room for dispute over such interpretation, it shall be deemed that the defect is grave and obvious. However, if there is room for dispute over the interpretation because the legal principle that the provision of the law is not applicable to such legal relation or fact-finding is not clearly revealed, it is merely erroneous that the administrative agency erroneously interpreted it and issued an administrative disposition, and thus, it cannot be said that the defect is evident (see Supreme Court Decisions 2006Da83802, Mar. 16, 2007; 2010Du9358, Sept. 30, 2010).

4. Conclusion

Therefore, the plaintiff's primary claim of this case is dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.