Whether the Plaintiff is the nominal name holder, and whether the degree of the defect is null and void since it is significant and apparent.

(1) As long as the Plaintiff consented to the registration of the instant business entity, it could be sufficiently anticipated that the Plaintiff reported the value-added tax on the instant business, and thus, even if there exists a significant defect in the disposition of the instant case, it cannot be deemed that the said defect is objectively obvious and cannot be deemed null and void.

Collection of Article 58 of the Value-Added Tax Act

Seoul High Court 2016Nu35962 Action to invalidate the imposition of value-added tax

AA

00. Head of tax office

on 07 July 2016

on 18, 2016

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 defendant's second-year addition to the plaintiff in 2012 shall be revoked. The defendant's second-year addition to the plaintiff in 2013.

The imposition of 339,062,190 Won is invalid.

1. Basic facts

A. From November 21, 2011, the Plaintiff and BB, CCC, DD (hereinafter referred to as “B, etc.”) registered the type of business as a joint business proprietor from November 21, 201, the type of business was closed ex officio on December 31, 2012.

B. BB filed a final return on the value-added tax for the instant project on January 22, 2013; on February 12, 2013, 2013, BB filed a revised return on the total of KRW 417,574,80 in the value-added tax for the second period of February 12, 2012 (the total of KRW 347,400,000, additional tax on negligent tax returns of KRW 55,584,000, additional tax on negligent tax payment; KRW 14,590,80 in the additional tax on negligent tax payment; however, BB, etc. did not pay such tax to the Plaintiff. As the Plaintiff and BB, etc. failed to fulfill their tax liability, the Defendant served the said final return on July 1, 2012 with the Plaintiff and B, etc. on the total of KRW 347,400,000,000, KRW 680,000,3436,436.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, Eul evidence Nos. 1 through 5 (including the number of each branch number), and the purport of the whole pleadings

A. The plaintiff's assertion

A person who actually runs the instant business is BB, etc., and the Plaintiff is merely a person who lends his name to the instant business, and the Plaintiff did not delegate the instant report to BB. Therefore, the Plaintiff’s reporting act of BB as an act of report without authority is null and void as a matter of course. The instant disposition based thereon is null and void as a matter of course.

B. Determination

1) With respect to value-added tax adopting the method of filing a tax return, where the tax authority considers that the taxpayer’s liability to pay acquisition tax has become final and conclusive by filing a tax return and orders the taxpayer to perform such tax return, even if there are defects in the taxpayer’s filing of a tax return, such defects are not succeeded to the disposition of collection, which is subsequent to the disposition of tax payment, unless such defects constitute grounds for invalidation. Whether a taxpayer’s filing of a tax return falls under the invalidation of a tax due to significant and apparent defects in the laws and regulations, which serve as the basis for the filing of a tax return, should be determined reasonably by considering the specific circumstances leading to the filing of a tax return individually (see, e.g., Supreme Court Decision 2005Du14394, Sept. 8, 2006). Furthermore, even if there are 200Du14810, supra, it cannot be deemed that the taxpayer is subject to tax imposition, such as an administrative sanction, even if having failed to voluntarily file a tax return and payment, and thus, it cannot be deemed unlawful (see, Supreme Court Decision 2010109Do.

2) According to the purport of Gap evidence No. 3, the plaintiff decided to lend the title to the business of this case at the request of BB and registered as a business operator of this case jointly with BB, but the following circumstances are acknowledged as follows: (i) insofar as the plaintiff consented to the registration of the business of this case as a business operator of this case, the plaintiff can sufficiently be anticipated that BB, etc. should report value-added tax on the business of this case; (ii) the plaintiff is deemed to have delegated B, etc. the authority to report value-added tax to B, etc. at least implicitly; and (iii) the plaintiff only lent the name of the business operator of this case to BB, etc. and supplied goods or services to the actual business operator of this case or received legitimate delegation from BB in filing the report of value-added tax of this case, it can only be seen that the plaintiff could not be seen that the principal tax of this case was made under the name of BB, etc., and it could not be viewed that B, etc. of this case's act of lease of value-added tax to B, etc.

3) Therefore, even if BB’s defect in reporting the value-added tax on the instant business, it is not succeeded to the collection disposition of the instant value-added tax, which is the subsequent disposition, and it does not constitute a joint and several tax liability of the principal tax of value-added tax, and thus, it cannot be imposed and collected additional tax. Thus, the instant disposition cannot be deemed null and void as a matter of course.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.