Article 96 of the Income Tax Act

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

A. Taxation by the head of ○○ Tax Office on the Plaintiff

1) From around 1998 to 2003, the head of ○○ Tax Office respectively imposed the comprehensive income tax listed in [Attachment 1] Nos. 1 to 4 on the grounds that the Plaintiff failed to file a comprehensive income tax return with the Plaintiff or there was an error or omission in the details of the return.

2) Upon the application of the Plaintiff’s creditor, ○○ Mutual Savings and Finance Company, each of the instant real estate listed in the separate sheet No. 2, which is owned by the Plaintiff (hereinafter “each of the instant real estate”), was initiated by the Gwangju District Court ○○○○○○ Branch 98 000, and KimA was awarded a successful bid on December 18, 1998 at the above auction procedure, and the Plaintiff did not file a report on the tax base and amount of capital gains tax on each of the instant real estate.

Accordingly, on July 2, 1999, the head of ○○ Tax Office calculated the acquisition value and transfer value of each real estate of this case as the standard market price as stated in the separate sheet No. 2. List No. 2., and imposed on the Plaintiff the transfer income tax listed in the separate sheet No. 5 (hereinafter referred to as “the transfer income tax of this case”) on the Plaintiff on July 2, 199.

B. Attachment of October 27, 2005 by the head of ○○ Tax Office

As of October 27, 2005, each of the taxes of this case is KRW 147,669,730, including additional dues of KRW 58,158,600, as indicated in the debt statement as shown in attached Table 1. On October 27, 2005, the head of the ○○ Tax Office attached the Plaintiff’s wage claim (the amount until it reaches KRW 147,69,730,00, out of the total sum of national taxes in arrears as of October 27, 2005, excluding the income tax and resident tax, until the amount reaches KRW 147,69,730,00, out of the total sum of national taxes in arrears as of October 27, 2005).

(c) Procedures of the previous trial;

On November 14, 2014, the Plaintiff filed an appeal with the Tax Tribunal against the instant disposition of imposition of capital gains tax, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s appeal on the ground that the Plaintiff filed an appeal on October 14, 2014 after the lapse of 90 days from October 27, 2005 upon receipt of the instant notice of attachment disposition.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3 through 6, 8 (including branch numbers if there are branch numbers; hereinafter the same shall apply), Eul evidence 1 and 2, and the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

1) Claim for confirmation of the absence of tax liability of each of the instant taxes

The tax liability of this case was extinguished by the completion of the extinctive prescription of the right to collect the national tax.The amount received by the ○○ Tax Office through the request for delivery should be deducted from the tax of this case.

Since the Defendant knew that the successful bid price of each of the instant real estate was KRW 535,90,00 at the time of filing a request for delivery, the transfer value should be calculated as KRW 594,892,123 as shown in the table of Attached Table 2, although the Defendant determined the acquisition value of each of the instant real estate as KRW 816,156,960 calculated based on the value-added tax amount or KRW 658,906,940 calculated based on the acquisition tax amount or KRW 816,96,960, which was calculated based on the value-added tax amount, was determined as KRW 367,619,940 without any basis. As such, even though the Plaintiff did not obtain gains from the transfer of each of the instant real estate, the head of ○○ Tax Office imposed the transfer income tax of this case

2) Claim to nullify the invalidity of the attachment disposition of this case

As seen above, the attachment disposition of this case was made after the expiration of the extinctive prescription of the right to collect the national tax.

(b) Related statutes;

3. Attached Table 3. It shall be as listed in relevant Acts and subordinate statutes.

3. Judgment on the defendant's main defense

A. The defendant's main defense

Unless otherwise specifically provided for in other Acts, an administrative litigation seeking the revocation or invalidation of an administrative disposition shall be the defendant of an administrative disposition, etc., which is the subject of the lawsuit, externally conducted under his/her name. Since the head of ○○ Tax Office rendered the disposition of imposition and seizure of each tax of this case under his/her name, the lawsuit of this case is unlawful as it is against

B. Determination

1) As to the legitimacy of the lawsuit regarding the claim for nullification of the attachment disposition of this case

Except as otherwise provided in other Acts, an administrative litigation seeking the cancellation or nullity of an administrative disposition shall be the defendant against the disposition agency which has taken the disposition (Articles 38(1) and 13(1) of the Administrative Litigation Act), and Article 24(1) of the former National Tax Collection Act (amended by Act No. 8832 of Dec. 31, 2007) provides that "the tax official shall seize the taxpayer's property if the taxpayer does not pay in full the national tax and the additional dues by the designated deadline after receiving a demand notice," and Article 45(1) of the same Act provides that "the head of the tax office shall request the registration of seizure to the competent registry office if he attaches the real estate, factory foundation, mining foundation, or ship." In full view of the statement in evidence No. 8, it can be recognized that the ○○ director of the tax office had taken the attachment disposition of this case against the plaintiff.

Therefore, the part of the claim for nullification of the attachment disposition of this case is filed against the Republic of Korea without standing to be the defendant (it cannot be deemed that the attachment disposition of this case was made after the expiration of the extinctive prescription of the national tax collection right, as seen in the following 4.A.).

2) As to the legitimacy of each tax of this case's lawsuit for confirmation of non-existence of tax liability, the form of lawsuit for confirmation of non-existence of tax liability belongs to a party suit in the public law itself. Thus, under Articles 3 subparagraph 2 and 39 of the Administrative Litigation Act, the state, public organization, and the subject of rights who is a party to the legal relationship shall have the standing to be the defendant. The administrative agency which has the right to impose tax merely has no standing to be the defendant (see, e.g., Supreme Court Decision 9Du2765, Sept. 8, 200). Article 2 subparagraph 1 (a) of the former Framework Act on National Taxes (amended by Act No. 7329, Jan. 5, 2005; hereinafter referred to as the "former Framework Act on National Taxes"), Article 4 (1) 1, 3, and 3 of the former Income Tax Act (amended by Act No. 5580, Dec. 28, 1998; hereinafter referred to as the former Income Tax Act).

4. Determination as to the merits (the claim for confirmation of non-existence of each tax liability of this case)

A. As to the assertion that extinctive prescription of national tax collection right has expired

1) According to Article 27(1) of the former Framework Act on National Taxes, if the State’s right to collect national taxes is not exercised for five years from the time when it can be exercised, the extinctive prescription shall expire. However, pursuant to Article 28(1)3 and 4 of the same Act, the extinctive prescription shall be interrupted as a request for delivery or a seizure. Article 12-4(1)1 and 2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 18385 of May 10, 2004), concerning the initial date of the extinctive prescription of the right to collect national taxes, with respect to the reported amount of national taxes, the date following the statutory due date for payment of the tax base and the due date for payment of the tax return, and if the Government determines, revises, or occasional assessment of the tax base and tax amount,

2) First of all, the fact that the payment period of the above global income tax was February 28, 2003 with respect to the global income tax listed in [Attachment 1.] No. 4 of the debt list No. 4 is as seen earlier, but the attachment disposition of this case was made on October 27, 2005, which was within five years from the day following the above payment period as well as on October 27, 2005. As seen earlier, the extinctive prescription of the right to collect the national tax on the above global income tax is suspended pursuant to Article 28(1)4 of the former Framework Act

3) Next, as to the global income tax and transfer income tax listed in [Attachment 1. 5] Nos. 1, 2, 3, and 5], the payment deadline for each of the above global income tax and transfer income tax indicated in [2] No. 1. 31, 1998; December 31, 1998; August 15, 199; and July 31, 199 as mentioned above; however, according to the above facts, the 000 tax office’s extinctive prescription period was suspended on September 26, 2001, based on the whole arguments stated in the evidence Nos. 6 and 9, 300 square meters of the above global income tax, 200, Seo-gu 629, 330. 1,000 square meters of the above global income tax, 30 years of extinctive prescription period of 1,000,0000 won of the above global income tax, and 3. 1,001,01.

On the other hand, the plaintiff argues that the "request for delivery" does not fall under the "request for interruption of extinctive prescription," which is a cause for interruption of extinctive prescription under the Civil Act, and thus, the extinctive prescription cannot be interrupted only by the request for delivery. However, Article 28 (3) of the former Framework Act on National Taxes recognizes "request for delivery" as one of

4) Therefore, the Plaintiff’s assertion that the extinctive prescription of the right to collect tax of this case has expired is without merit.

B. As to the assertion of deduction of the amount received through the claim for delivery

In full view of the purport of each statement in Eul evidence Nos. 9 and 10, the defendant shall appropriate each amount received through voluntary payment by the plaintiff or the request for delivery by the head of ○○ Tax Office as shown below for the repayment of each tax of this case as stated in the table below, and recognize the fact that each of the taxes of this case is the same as that stated in the debt statement No. 1. 1, as of October 27, 2005. Thus, the plaintiff's assertion on this part is without merit.

No.

Items Code

Date of Receipt

Amount received;

List of Tax Items

1

19807-5-10

Global Income Tax

November 30, 1998

500,000

March 31, 1999

130,000

February 24, 2004

1,075,330

2

199811-7-10

Global Income Tax

3

19908-5-10

Global Income Tax

April 29, 2004

11,327,290

August 10, 2004

8,526,920

4

200302-6-10

Global Income Tax

March 26, 2003

10

5

19907-6-22

Transfer Income Tax

C. As to the assertion that the instant disposition of capital gains tax is invalid

1) In order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient. The defect is objectively apparent in violation of the important laws and regulations, and it is necessary to examine the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the taxation disposition, from a teleological perspective and to reasonably consider the specificity of the specific case itself. From this perspective, in a case where a taxation disposition against a person who has no legal relations or factual relations, which is the basis for the taxation disposition, is significant and apparent, but it can only be found that there is objective reason to believe that the legal relations or factual relations, which are not subject to taxation, are subject to taxation, are subject to taxation, and it cannot be said that it is apparent that the factual basis is apparent even if the defect is serious, and thus, it cannot be said that the taxation disposition that misleads the fact, is null and void as a matter of course (see Supreme Court Decision 97Nu5893, Jun. 9, 200).

2) Articles 94 subparag. 1, 96 subparag. 1, and 97(1)1(a) of the former Income Tax Act provide that the transfer value and acquisition value shall be based on the standard market price at the time of transfer and acquisition of the land or building in principle, but only in such cases as prescribed by the Presidential Decree. Article 100(1) of the former Enforcement Decree of the Income Tax Act provides that either of the transfer value or acquisition value shall be based on the actual market price if the transfer value or acquisition value is calculated based on any one of the actual market price, and the other shall be based on the standard market price if either one is based on the standard market price. Article 164(1)2 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 15967, Dec. 31, 198; hereinafter referred to as the “former Enforcement Decree of the Income Tax Act”) provides that where a successful bid price is lower than the standard market price at the time of transfer, the person at the time of transfer shall file a report with the head of the competent tax office.

3) In light of the relevant laws and regulations, as to the instant case, as the Plaintiff did not report the tax base and tax amount of capital gains tax on each of the instant real estate, the head of ○○ Tax Office calculated the acquisition value of each of the instant real estate as the standard market price and the transfer value of each of the instant buildings listed in Articles 3 through 12 of the same list as the acquisition value of each of the instant real estate and the transfer value of each of the land listed in Articles 3 and 164(3)2 of the former Enforcement Decree of the Income Tax Act as stated in Article 99(1)1 (a) and (b), Article 100(1) of the former Income Tax Act, and Article 164(3) and (11)2 of the former Enforcement Decree of the Income Tax Act, as the transfer value of each of the instant real estate is calculated as the successful bid price. This is lawful as it is in accordance with the relevant laws and regulations at the time of the establishment of the capital gains tax in this case, even if the Plaintiff did not obtain the gains from transfer of the instant real estate

4) Therefore, the Plaintiff’s assertion on this part is without merit.

5. Conclusion

Therefore, the part of the claim for nullification of the attachment disposition of this case among the lawsuits of this case is unlawful, and the remaining claims of the plaintiff are dismissed as it is without merit. The judgment of the court of first instance is justified as it is in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

1. Statement of details of obligations (based on October 27, 2005);

(unit: Won)

net

Congress

Items Code

Management Number

year-end portion;

Principal Tax

Additional Dues

List of Tax Items

Deadline for payment

guidance.

1

19807-5-10

Global Income Tax

0000

July 31, 1998

1. Notice of regular subdivisions

2,026,880

1,896,460

130,420

2

199811-7-10

Global Income Tax

0000

December 31, 1998

The interim prepayment/prepaid notice of 1998.01

3,180,710

1,797,250

1,383,460

3

19908-5-10

Global Income Tax

0000

August 15, 1999

1. Notice of regular subdivisions

6,917,970

6,835,940

82,030

4

200302-6-10

Global Income Tax

0000

February 28, 2003

1. Occasional notice of 1998

17,377,410

12,220,560

5,156,850

5

19907-6-22

Transfer Income Tax

0000

July 31, 1999

1. Occasional notice of 1998

18,166,760

66,760,920

51,405,840

Consolidateds

5 Cases

147,669,730

89,511,130

58,158,600

3. Related statutes;

▣ 구 국세징수법(2007. 12. 31. 법률 제8832호로 개정되기 전의 것)

Article 24 (Requirements for Attachment)

(1) A tax official shall seize the taxpayer's property in any of the following cases:

1. Where the taxpayer fails to pay completely national taxes and the additional dues by the designated period after receiving a notice of demand (including a peremptory notice; hereinafter the same shall apply);

2. If the taxpayer fails to pay completely the tax by the designated period after receiving a notification of tax payment before the payment period under Article 14 (1); and

(2) If the head of a tax office deems that a taxpayer cannot collect national taxes after the determination of national taxes due to a cause falling under any subparagraph of Article 14 (1), he/she may seize the taxpayer's property to the extent of the estimated amount of national taxes.

Article 45 (Procedures of Seizing Real Estate, etc.)

(1) When the head of a tax office attaches real estate, a factory foundation, a mining foundation, or a ship, he/she shall request the competent registration office to register the seizure. The same procedures shall also be taken

▣ 구 국세기본법(2005. 1. 5. 법률 제7329호로 개정되기 전의 것)

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "national taxes" means any of the following taxes imposed by the State:

(a) Income tax;

Article 27 (Extinctive Prescription of Right to Collect National Taxes)

(1) Any right of the State to collect national taxes shall be extinguished by prescription, if it is not exercised for five years from the time it is exercisable.

(2) Extinctive prescription under paragraph (1) shall be subject to the Civil Act, except as otherwise provided for in this Act or tax-related Acts.

(3) The time when the State can exercise its rights to collect national taxes under paragraph (1) shall be determined by Presidential Decree.

Article 28 (Interruption and Suspension of Prescription)

(1) Extinctive prescription under Article 27 shall be interrupted by any of the following grounds:

1. A tax payment notice;

2. Urging or demand for payment;

3. Request for delivery;

4. Seizure.

(2) The extinctive prescription interrupted under paragraph (1) shall resume when the period specified in the following subparagraphs expires:

1. Period of payment notified;

2. Period fixed by urging or demand notice of payment;

3. Period specified in the request for delivery;

4. Period until seizure is cancelled.

▣ 구 국세기본법 시행령(2004. 5. 10. 대통령령 제18385호로 개정되기 전의 것)

Article 12-4 (Initial Date in Counting Extinctive Prescription of National Tax Collection Right)

(1) "Time when the State can exercise its rights to collect national taxes" in Article 27 (3) of the Act means the dates under the following subparagraphs:

1. For the national tax for which the duty of payment is determined by the tax base and return of tax amount, the day following the statutory due date of payment;

2. If the government determines, revises, or occasional assessment of the tax base and amount, the day following the due date for payment notified by a notice of tax payment for such tax amount.

▣ 구 소득세법(1998. 12. 28. 법률 제5580호로 개정되기 전의 것)

Article 4 (Classification of Income)

(1) Income of a resident shall be classified as follows:

1. Total sum of interest, dividend, real estate rental income, business income, labor income, temporary property income and other incomes generated in the current year of global income;

3. Transfer income: Income accruing from a transfer of assets; and

Article 94 (Scope of Transfer Income)

The transfer income shall be the following incomes generated in the concerned year:

1. Income accruing from transferring buildings or land;

Article 96 (Transfer Price)

The transfer value shall be the following amounts:

1. In the case of assets under subparagraphs 1, 2 and 5 of Article 94 (excluding the assets determined by Presidential Decree), the standard market price at the time of transfer of the relevant assets: Provided, That in the case prescribed by Presidential Decree in view of the kinds, periods of holding, scale of transaction, transaction methods, etc., the actual transaction price shall apply;

Article 97 (Calculation of Necessary Expenses in Transfer Income)

(1) In calculating gains on transfer of a resident, necessary expenses to be deducted from the transfer value shall be as follows:

1. Acquisition value:

(a) In the case of assets under subparagraphs 1, 2 and 5 of Article 94 (excluding the assets prescribed by Presidential Decree), the standard market price at the time the assets are acquired: Provided, That in the case prescribed by Presidential Decree in view of the type, holding period, size of transaction, transaction methods, etc. of the relevant assets, it shall be based on the actual transaction price required for the acquisition

Article 99 (Computation of Standard Market Price)

(1) The standard market price provided for in Articles 96, 97 (1) 1 and 100 shall be as follows:

1. Assets under subparagraph 1 of Article 94:

(a) Land;

The officially assessed individual land price under the Act on the Public Notice of Land Price and the Evaluation of Land, etc. (hereinafter referred to as the “officially assessed individual land price”): Provided, That the price of land for which no officially assessed individual land price exists, shall be the amount assessed by the method as determined by the Presidential Decree in consideration of the publicly assessed individual land price of neighboring similar land, and in the

(b) Buildings:

Except as provided in item (c), the value based on the standard market price as prescribed by the Presidential Decree.

§ 100. Calculation of gains on transfer)

(1) In the calculation of gains on transfer, if one of the transfer or acquisition values is based on the actual market price, the other shall be based on the actual market price, and if it is based on the standard market price, the other shall be based on the standard market price: Provided, That in such cases as prescribed by the Presidential Decree, if it is possible to confirm the actual market price of either the transfer or acquisition, it shall be based on the actual market price, and the other which is impossible to confirm the actual market price shall be based on the price converted by the method prescribed by the Presidential Decree.

▣ 구 소득세법 시행령(1998. 12. 31. 대통령령 제15967호로 개정되기 전의 것)

§ 164. Calculation of standard market price of land and buildings

(3) For the purpose of Article 99 (1) 1 (b) of the Act, the term “value based on the standard market price determined by the Presidential Decree” means the value based on the standard market price under Article 80 (1) of the Enforcement Decree of the Local Tax Act (the rate of increase or decrease under the proviso to

(11) Where the value falling under any of the following subparagraphs is lower than the value under Article 99 (1) 1 (a) of the Act, the standard market price at the time of transfer shall be calculated by deducting the excess amount from the value under Article 99 (1) 1 (a) of the Act:

1. In case where the public project executor transfers the land for the public project to which the Act on Special Cases concerning the Acquisition of Land and Compensation for Loss applies, or where the land is expropriated under the Land Expropriation Act or

2. Cases where a public sale under the National Tax Collection Act, a compulsory sale by official auction or a mortgage is held under the Civil Procedure Act, and the price at such public sale or auction; or

Article 166 (Computation of Gains on Transfer)

(4) "Cases prescribed by Presidential Decree in consideration of the type, period of holding, scale of transaction, transaction method, etc. of the relevant assets" in the proviso to subparagraph 1 of Article 96 and the proviso to Article 97 (1) 1 (a) of the Act means any of the following cases:

1. Where any of the following assets is transferred for short-swing profits:

(a) The asset indicated in Article 157 (3) 2;

(b) Real estate within one year after its acquisition;

2. Where real estate is acquired or transferred by unlawful means, such as preparation of a false contract or a false transfer of resident registration, which meets the standards determined by the Commissioner of the National Tax Service, or where assets under Article 104 (3) of the Act are transferred for the purpose of evading

3. Where the transferor makes a report on the actual transaction price at the time of transfer and acquisition to the head of tax office having jurisdiction over the place of tax payment by keeping the evidential documents within the date of determination.