Invalidity of Disposition of Value-Added Tax

The plaintiff's rejection of the plaintiff's assertion that the plaintiff filed a lawsuit seeking nullification of the imposition of the value-added tax, since the food provision service and the convenience store were taxed by omitting sales, but the food provision service were refundable through

Article 45-2 (Request for Correction, etc.)

District Court 2014Guhap9535

Medical Corporations; Medical Corporations; Medical Corporations;

Head of the Office of Government

March 29, 2016

April 16, 2016

1. Of the lawsuit of this case

(a) each disposition of imposition of value-added tax for the first term of January 2007 (a defined modifications and estimated modifications);

(b) the portion exceeding 29,179,660 won in the disposition of imposition of value-added tax of 33,934,040 won for a period of one year, 2010;

(c) the portion exceeding 24,750,025 won in the disposition of imposition of value-added tax of 29,210,820 won for the second period of 2010;

(d) the portion exceeding KRW 23,787,939 in the disposition of imposition of value-added tax of KRW 27,936,500 for a period of one year, 201;

(e) Part exceeding 17,801,460 won in the disposition of imposition of value-added tax for a period of two years, 201;

All parts that seek confirmation of invalidity shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. Litigation Costs shall be borne by the Plaintiff.AA

Cheong-gu Office

On September 3, 2012, the Defendant confirmed that the imposition of each value-added tax stated in the separate taxation list against the Plaintiff is null and void.

1. Details of the disposition;

A. The Plaintiff is located in the BBC Hospital and the same hospital located in ABBCC-Eup Dro 208

It is a business operator who operates a funeral hall of this case (hereinafter referred to as "the funeral hall of this case").

B. During the period of value-added tax period from January 2007 to February 2011, the Plaintiff supplied food to the visitors and reported the value-added tax exemption for the pertinent food provision service (hereinafter “instant food service”).

C. On September 3, 2012, the Defendant notified the Plaintiff of the data that the above food provision service was subject to value-added tax and that the Plaintiff omitted part of the report on the sales of convenience stores, and on September 3, 2012, on February 2, 2007, as indicated in the attached Table of Tax Disposition, and notified the Plaintiff of the data, the Defendant included the amount of KRW 36,283,50 for the second term portion in 2007, KRW 35,185,010 for the second term portion in 2008, KRW 31,325,50 for the second term portion in 208, KRW 34,198,940 for the first term in 209, KRW 39,756,920 for the second term portion in 209, KRW 33,934,040 for the second term portion in 2010, KRW 210 for the second term portion in value-added tax for 20 years, KRW 136140 for each year

D. After the Plaintiff fully paid the value-added tax according to the above disposition, on August 16, 2013, the Plaintiff filed a request for correction of the value-added tax base and the amount of value-added tax from January 2010 to February 2011 on the ground that “the exemption of food services at funeral parlors” was finalized. The Defendant accepted the Plaintiff’s request for correction, and subsequently reduced the amount of value-added tax to KRW 4,754,380 for one year, 2010, and KRW 4,460,795 for two years, 2010, and KRW 4,148,561 for one year, and KRW 3,645,050 for two years, 2011 (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 to 6, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

1) The Plaintiff had already paid the full value-added tax under each of the dispositions of this case.

It is only possible to file a civil suit seeking the return of a tax amount, and there is no legal interest in seeking the confirmation of invalidity of the disposition itself of this case.

2) The plaintiff voluntarily reported and paid the value-added tax for the first time in 2007, and the defendant's division

Since the imposition of the tax does not exist, the lawsuit on the part that contests the imposition of the tax base value-added tax in 2007 is unlawful.

3) The value-added tax portion from January 201 to February 2011 is upon the Plaintiff’s request for correction.

As the defendant reduced or re-revision, the lawsuit seeking confirmation of invalidity on this part is unlawful.

B. Legal interest in seeking nullification confirmation

Administrative litigation is revoked or modified by an administrative agency's illegal disposition, etc., or its validity or existence;

The purpose of this study is to relieve citizens from infringement of their rights and interests and to properly resolve disputes over the legal relationship or the application of law among equal entities. As such, Article 4 of the Administrative Litigation Act provides that a lawsuit seeking nullification shall be a kind of appeal litigation, and Article 30 of the Administrative Litigation Act shall also apply to a lawsuit seeking nullification of a final and conclusive judgment revoking a disposition, etc. and a lawsuit seeking nullification of a disposition by an administrative agency. Article 38(1) of the Administrative Litigation Act also applies to a lawsuit seeking invalidation of a lawsuit seeking invalidation of an administrative disposition. Unlike some other legislation of a foreign country which provides the supplementary nature of a lawsuit seeking nullification of an administrative disposition, there is no express provision in the Administrative Litigation Act of the Republic of Korea, and there is no express restriction thereon. In full view of these circumstances and the function of an administrative lawsuit, such as the expansion of judicial control and remedy of rights and interests related to administration, where there are direct and specific benefits protected by the law based on an administrative disposition, it is reasonable to interpret that a lawsuit seeking invalidation of an administrative disposition is not directly required (see Article 35 of the Administrative Litigation Act).

In light of the above legal principles, the Plaintiff has already paid the full value-added tax on the instant disposition.

Even if the disposition of this case was invalid and the claim for performance can be made by means of a lawsuit claiming the restitution of unjust enrichment, it shall be deemed that there is a legal interest in seeking the confirmation of invalidity as stipulated in Article 35 of the Administrative Litigation Act regarding the disposition of this case. Accordingly, the defendant's assertion on

C. The portion of value-added tax for one year 2007

The plaintiff is premised on the defendant's imposition of the value-added tax for the first year of 2007.

While seeking nullification of the imposition of value-added tax of 18,70,010 won of value-added tax of 1,207 (11,153,810 won + 7,546,200 won) is recognized only as having been paid by the Plaintiff to the administrative agency on July 20, 2012 prior to the instant disposition, and there is no evidence to prove that the Defendant issued a disposition imposing value-added tax of 1, 2007 against the Plaintiff. Accordingly, the part of value-added tax of 1, 2007 among the instant lawsuit is unlawful since there is no disposition seeking confirmation of invalidation.

D. As to the imposition of value-added tax from January 2010 to February 2011

Part of the tax imposition disposition which was lawfully revoked by a correction or re-revision;

In other words, there is no benefit in legal action to seek revocation of the original disposition for reduction from office, and it is sufficient to seek revocation of the original disposition for reduction from office (see, e.g., Supreme Court Decision 81Nu393, Nov. 23, 1982).

The defendant, among the plaintiff, value-added tax of 1 January 2010 33,934,040 won for the plaintiff

4,754,380 won, 29,210, 4,460,795 won, among value-added tax for 2 years 2010, 4,148,561 won, among value-added tax for 1 year 2011, 4,148,561 won, among 21,446,510 won, 3,645,050 won, which exceeds 29,174,660 won, among 205, 207, 2064, 207, 2057, 2096, 207, 209, 2064, 207, 205, 367, 2964, 206, 205, 207, 3605, 207, 294, 206, 207, 2967, 2794, 2016.

3. Judgment on the merits

A. The plaintiff's assertion

1) The food service of this case is naturally incidental to the supply of funeral services.

The Supreme Court also held that the provision of food in funeral parlors is subject to value-added tax exemption under the Acts and subordinate statutes, and the provision of food in funeral parlors is subject to value-added tax exemption. Nevertheless, the defendant made the instant disposition on the premise that the food service in this case is not subject to tax exemption. The disposition in this case is significant and apparent.

2) The Defendant imposes a long-term value-added tax on food services supplied at a funeral hall.

The disposition of this case, which imposes value-added tax on only some medical institutions, including the plaintiff, against such non-taxation practice, is against the plaintiff's trust in non-taxation practice and is thus null and void in violation of the principle of good faith.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

1) Whether the instant disposition was defective

A) The former Value-Added Tax Act (Amended by Act No. 9915, Jan. 1, 2010; hereinafter the same)

Article 12(1)4 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply) provides that "medical and health services under Article 12(1)4 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply) are provided by Chapter 6, and provides that "the funeral services provided by the funeral business operator" under Article 12(1)4 of the former Enforcement Decree of the Value-Added Tax Act are provided by Article 12(3) of the former Value-Added Tax Act, and Article 1(4) of the former Enforcement Decree of the Value-Added Tax Act provides that "the supply of goods or services inevitably annexed to the supply of goods or services is included in the supply of goods or services, which are the main supply of goods or services, and Article 3 of the former Enforcement Decree of the Value-Added Tax Act generally provides goods or services as one of the supply of goods."

The factory of goods or services indispensable to the supply of exempted goods or services;

In interpreting Article 12(3) of the former Value-Added Tax Act which provides for pay-added tax exemption, it shall be interpreted in consideration of Article 1(4) of the former Value-Added Tax Act and each subparagraph listed in Article 3 of the former Enforcement Decree of the Value-Added Tax Act (see, e.g., Supreme Court Decision 83Nu616, Oct. 22, 1985).

(B) funeral services for the provision of food at a kitchen or a funeral hall;

However, in light of the fact that the provision of food services at a funeral hall does not fall under the category of dynasing and burial and the installation of a dynasium, and the provision of labor services such as the lease of a funeral hall for the purpose of the deceased, it is reasonable to deem that the provision of food services at a funeral hall is ordinarily incidental to the supply of funeral services subject to value-added tax exemption (see, e.g., Supreme Court Decision 2013Du932, Jun. 28, 2013). In light of the fact that the provision of food services at a funeral hall is performed not by the general public but by a place where the provision of food services at a funeral hall is directly adjacent to the supply of funeral services subject to value-added tax exemption (see, e.g., Supreme Court Decision 2013Du932, Jun. 28, 2013).

Therefore, since food services are subject to value-added tax exemption, the plaintiff's funeral service in this case

The disposition of this case conducted on the premise that food services in the food hall are not subject to value-added tax exemption is considered illegal.

2) Whether the defect in the instant disposition is serious and obvious and invalid

(A) In order to make a defective administrative disposition null and void as a matter of course, the defect is important in the laws and regulations.

In order to determine whether a defect has been significant and obvious, it must be objectively and objectively in violation of the relevant provision’s purpose, meaning, and function. At the same time, it is necessary to reasonably consider the specificity of a specific case itself. In cases where an administrative agency takes an administrative disposition by applying the provisions of a certain Act to certain legal relations or factual relations, the legal doctrine clearly stated that the provisions of the Act cannot be applied to such legal relations or factual relations, and thus, if an administrative agency takes the administrative disposition by applying the above provision despite there is no room for dispute over the interpretation, the defect is grave and obvious. However, if there is room for dispute over the interpretation of the relevant provision as it is unclear that the legal relations or factual relations are not applicable, it is merely erroneous as to the fact requiring the administrative disposition, even if the administrative agency erroneously interpreted it, and thus, it cannot be said that the defect is evident. In addition, it is evident that there is no objective error in finding that an administrative disposition is subject to 80 or more (see, e.g., Supreme Court Decision 200Do8284, supra.).

B) Although the Supreme Court’s decision on June 28, 201 to the effect that the instant food service constitutes a tax-free subject under the Value-Added Tax Act, there was room for dispute over the interpretation of the legal principles as to whether the supply of food at a funeral hall constitutes a tax-free subject under the Value-Added Tax Act and subordinate statutes at the time of the instant disposition, and even if the Defendant erroneously interpreted it and issued each disposition of this case, it cannot be said that the defect is apparent because it is merely a misunderstanding of the requirements for the disposition. In addition, as to whether the instant food service constitutes a tax-free subject, it is deemed that only can be examined based on the factual basis after examining whether the relevant facts exist and examining the transaction practices incidental to the supply of funeral services, which are the main transaction. Thus, even if there were defects prior to the instant disposition, it cannot be said that the instant disposition is void as a matter of course.

In this regard, the plaintiff asserts that the requirements for recognition of importance and clarity should be mitigated with respect to the defects in the disposition of this case, but requests for the safety of taxation administration and its smooth operation, tax liability, etc.

Therefore, the Plaintiff’s above assertion is not acceptable inasmuch as there seems to be a special circumstance to deem the instant disposition to be significantly unreasonable in terms of self-help, etc.

Therefore, the plaintiff's assertion that the defect in the disposition of this case is serious and clear is void as a matter of course is groundless.

3) Whether the non-taxable practices and the principle of equity are violated

A) The good faith principle or the principle of respect for tax practice under Article 18(3) of the Framework Act on National Taxes is legal.

Even if the principle is sacrificeed, it shall be applicable only under special circumstances where the protection of taxpayer’s trust is deemed consistent with the justice (see, e.g., Supreme Court Decision 91Nu9848, Apr. 28, 1992). In order to establish the principle of good faith or non-taxation practices prescribed in Articles 15 and 18(3) of the Framework Act on National Taxes with respect to the tax law, it shall be interpreted that there is an objective fact that the tax authorities did not impose taxes on certain matters over a long period of time, and that the tax authorities should have known that they would not impose taxes on certain matters, and that such intent would be externally and explicitly or implicitly expressed by the taxpayer. The "general interpretation of the tax law or the practice of national tax administration" under Article 18(3) of the same Act is a wrongful interpretation or practice, but it is unreasonable for the taxpayer to have trusted such interpretation or practice without justifiable grounds (see, e.g., Supreme Court Decision 2017Du4197, Apr. 29, 20197).

B) Examining the instant case in light of the aforementioned legal principles, it is difficult to deem that the Defendant’s imposition of value-added tax from February 2, 2007 to February 201, 201 on the Plaintiff without immediately finding the Plaintiff’s omission in filing a return and without determining the correct tax base and amount of tax. Moreover, it is difficult to deem that there was a non-taxation for a long period of time, to the extent that

D. The above circumstance alone is that the tax authorities have known that they are able to impose taxes by any special circumstance and such intent is not externally or implicitly expressed. In addition, even if considering the evidence submitted by the Plaintiff and all the circumstances shown in the argument in the instant case, there is no evidence to prove that the Defendant did not impose a long-term value-added tax on food services at funeral homes, the Plaintiff’s assertion premised on the existence of non-taxable practice is without merit.

In addition, the plaintiff asserts that the disposition of this case is against the principle of equity in taxation.

However, there is no evidence to acknowledge that the Defendant imposed value-added tax on food services at a funeral hall only on some medical corporations, including the Plaintiff, and even if such fact is recognized, it does not immediately be subject to an illegal taxation. Even if the instant disposition violates the good faith principle, it is difficult to deem the disposition by an administrative agency as invalid on the sole basis of such reason (see, e.g., Supreme Court Decision 90Nu7449, Jan. 29, 199). Accordingly, the Plaintiff’s assertion that the instant disposition is invalid against the good faith principle is groundless.

4. Conclusion

Therefore, the part of the instant lawsuit which exceeds 29,179,660 won among the imposition disposition of value-added tax for the first term in 2007 and the imposition disposition of value-added tax for the second term in 2010, exceeds 24,750,025 won among the imposition disposition of value-added tax for the second term in 2010, exceeds 23,787,939 won among the imposition disposition of value-added tax for the first term in 2007, and the imposition disposition of value-added tax for the second term in 2010, exceeds 23,787,939 won among the imposition disposition of value-added tax for the second term in 201, the part which demands nullification of the imposition disposition of value-added tax for the second term in 21,46,510 won for the second term in 201, is all dismissed, and the remainder of the Plaintiff’s claim is without merit. Therefore, it is dismissed as per Disposition.