(영문) 대구지방법원 2014.8.1. 선고 2014구합139 판결

1. Of the instant lawsuits, the part concerning the revocation of the disposition imposing capital gains tax for the year 2007 and the request for revocation of the disposition imposing capital gains tax for the year 2010 shall be dismissed, respectively.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Purport of claim

The Defendant revoked the determination and notification disposition of KRW 251,520, capital gains tax for the year 2007, May 17, 2007, and revoked the determination and notification disposition of KRW 251,520, capital gains tax for the year 2007, paid on May 25, 2007, and revoked the determination and notification disposition of KRW 8,308,090, capital gains tax for the year 2010, August 10, 201, and revoked the disposition of KRW 5,126,070, capital gains tax for the year 2009, capital gains tax for special rural development tax for the year 2009, KRW 216,190, KRW 5,342,260, respectively.

Reasons

1. Details of the disposition;

(a) Disposition of imposition of transfer income tax for the year 2007 on the transfer of Daegu B land;

1) On March 15, 2007, the Plaintiff completed the registration of ownership transfer based on a consultation on the 12th day of the same month under the name of the Seo-gu Seoul Metropolitan City, Daegu-gu, which owned itself, 50m prior to C, D, 144m2 prior to D (hereinafter referred to as “land”).

2) On May 2, 2007, the Plaintiff completed the registration of ownership transfer in its name on the ground of sale due to voluntary auction (Tgu District Court G G) on April 24, 2007 with respect to E 671 square meters (FW large 278.7 meters in Busan Metropolitan City on January 7, 2011, hereinafter referred to as "alternative land").

3) On May 17, 2007, the Plaintiff reported capital gains tax for the year 2007 (transfer value: C land 17,250,000, C land 49,680,000) on May 17, 2007. On May 25, 2007, the Plaintiff paid KRW 245,460, total amount of capital gains tax for the year 2007 and KRW 6,080 to the Defendant.

4) On March 9, 2012, the Plaintiff filed a petition for grievance with the Defendant to the effect that “(i) the land was expropriated, and (ii) the substitute land was acquired by substitution, and thus a request for refund of capital gains tax was made. The Defendant rejected the petition on March 16, 2012 on the ground that the Plaintiff failed to meet the resident requirements. Thereafter, the Plaintiff filed a petition for grievance again with the Defendant on June 2013, and the Defendant notified the result of grievance settlement to the effect that the Plaintiff failed to meet the resident requirements, etc. on July 2, 2013.

5) On July 25, 2013, the Plaintiff filed a request for adjudication on July 25, 2013. However, the Tax Tribunal rendered a decision to dismiss a civil petition for grievance on the ground that “the civil petition for grievance is not a regular objection procedure,” but a request for rectification is filed on the ground that the Plaintiff’s filing of a civil petition for grievance on March 15, 2012 after three years from May 31, 2008, the statutory deadline for filing a transfer income tax base and tax amount on the farmland, and thus there is no disposition subject to appeal.”

(b) Disposition imposing capital gains tax for the year 2010 on the transfer of H land in Yongcheon-si;

1) On May 27, 2010, the Plaintiff completed the registration of transfer of ownership on the ground of a consultation on the 26th day of the same month in the name of Yongcheon-si, Yongcheon-si, J 76 meters, and J 405 meters on the 27th day of the same month. On July 6, 2010, the Plaintiff completed the registration of transfer of ownership on the ground of a consultation on the 256 square meters in his own name, and the 119 square meters in his/her own name on the same day in Yongcheon-si (hereinafter referred to as “each land”).

2) On April 26, 2012, the Plaintiff completed the registration of ownership transfer in its name on the ground of sale due to a compulsory auction (N in Daegu District Court) conducted on the 20th day of the same month with respect to one-fourths of 3,456 square meters among the 3,456 square meters of the M in Chungcheongnam-do, Chungcheongnam-gun, Chungcheongnam-do.

3) On August 12, 201 and September 28, 2012, the Defendant served respectively a notice of payment of capital gains tax for 2010 years to the 1401 Dong-dong 1401 (hereinafter “instant residence”) of Daegu North-gu apartment (hereinafter “instant residence”) which is the Plaintiff’s domicile on August 12, 201 and September 28, 201, by registered mail, on the ground that the Plaintiff failed to report capital gains tax on the land. However, all of the documents were returned because the address was unknown on August 23 and 10, 2011.

4) Accordingly, a public official in charge of the Defendant made a telephone conversation with the Plaintiff, and the Plaintiff sought to answer only the instant residence to the present address and to deliver it, but the Plaintiff was also unable to deliver it as the absence of the Plaintiff. Ultimately, the Defendant served a notice of tax payment (including additional tax, November 23, 2011) for capital gains tax of KRW 8,308,090 (including additional tax) accrued in 2010 to the Plaintiff on July 15, 2013, the Plaintiff served on the Plaintiff on the notice of tax payment (the changed payment period) for capital gains tax of KRW 8,308,090 (including additional tax). 5) On July 15, 2013, the Plaintiff filed an application with the Defendant for grievance settlement with the purport that the Plaintiff would apply for reduction or exemption of capital gains tax because the Plaintiff received compensation due to the expropriation of the land and acquired substitute land. On July 22, 2013

6) On August 7, 2013, the Plaintiff appealed and claimed for adjudication on August 7, 2013, but the Tax Tribunal made a decision to dismiss the Plaintiff’s appeal on the ground that the Plaintiff filed a request for adjudication after the lapse of 90 days from the date of service of the tax payment notice.

1) On April 10, 2009, Yongcheon-si completed the registration of ownership transfer in its own future on the grounds of expropriation as to Q 502m prior to Q 502m prior to R, 74m prior to S on the same day on the same day. On October 12, 2010, with respect to TM 8m2 prior to the sale on September 8, 2010 owned by the Plaintiff, respectively (hereinafter referred to as “each land”).

2) Afterwards, the Plaintiff completed the registration of ownership transfer due to sale due to voluntary auction (Tgu District Court X) on February 10, 2010, for the following reasons: 671m U. 671m, V 1,66m, W 2,030m (hereinafter referred to as “III substitute land”).

3) On June 18, 2013, the Defendant notified the Plaintiff of the notice of taxation prior to the Plaintiff on the ground that the Plaintiff had not reported the transfer income tax on land. On August 2, 2013, the Plaintiff appealed and filed a request for a tax prior review with the Defendant on August 2, 2013, the Defendant decided not to adopt the transfer income tax on the 22th of the same month, and on September 1, 2013, the Defendant corrected and notified the Plaintiff of the total amount of KRW 5,126,070 (including additional tax) of KRW 5,342,260 (hereinafter “instant disposition”).

4) The Plaintiff dissatisfied with the request for adjudication on September 13, 2013. However, the Tax Tribunal rendered a decision to dismiss the request on November 28, 2013. Meanwhile, the Plaintiff continued to reside therein on August 24, 2004 after moving the instant residence into the instant residence, and the instant residence and land are located at least 30 meters, and the instant domicile and land are located far away from Yongcheon-gu, Daegu Metropolitan City where the instant residence is located.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 15, 28, 31 evidence, Eul evidence 1 through 14 (including each number), the purport of the whole pleadings

2. Determination on the main defense, etc.

A. Determination on the claim for revocation of imposition of capital gains tax for the year 2007

10) The Plaintiff asserts that the Defendant’s imposition and notice of capital gains tax on May 17, 2007 with respect to the substitute land acquired as substitute land with compensation for land expropriation was unlawful and sought revocation of the said disposition against the Defendant. Accordingly, the Defendant asserts to the effect that the period of filing a request for correction under the Framework Act on National Taxes expires for three years, and that the disposition subject to a request for

2) The existence of an administrative disposition, which is the object of litigation in an administrative litigation, is a lawful requirement (see Supreme Court Decision 96Nu6707, Aug. 26, 1997). There is no evidence to acknowledge that the Defendant imposed and notified the Plaintiff of the transfer income tax for the year 2007 on May 17, 2007. Rather, as seen earlier, the Plaintiff reported the transfer income tax on the land on May 17, 2007, and on May 25, 2007, it can only be recognized that the Defendant paid the Defendant KRW 245,460, total amount of the transfer income tax for the year 207, total of KRW 6,080, total of the special rural development tax for the rural development tax for the year 207, and KRW 251,520. Therefore, this part of the Plaintiff’s lawsuit is unlawful because there is no disposition that is the object of administrative

B. Determination on the part of the claim for refund decision of capital gains tax reverted to year 2007

On the other hand, under the Administrative Litigation Act, a lawsuit seeking an execution judgment ordering an administrative agency to take a certain administrative disposition, or a lawsuit seeking a formation judgment ordering an administrative agency to directly conduct an administrative disposition having the same effect as having taken a certain administrative disposition is not allowed (see, e.g., Supreme Court Decision 97Nu3200, Sept. 30, 1997). This part of the lawsuit stating that "the defendant is entitled to refund capital gains tax of 251,520,00 won paid on May 25, 2007 to the plaintiff," which constitutes a performance suit seeking a performance judgment seeking a performance judgment ordering the plaintiff to actively perform a certain act against the defendant who is an administrative agency. Determination on the part concerning the claim for revocation of the disposition imposing capital gains tax for the year 2010 is unlawful.

1) The Plaintiff asserts that the Defendant’s notification of imposition of capital gains tax of KRW 8,308,090 for the substitute land, which was acquired as a substitute with compensation for land expropriation, was unlawful. In response, the Defendant asserts that it is unlawful by filing a lawsuit after the lapse of the period for filing a lawsuit by the Plaintiff.

2) Article 20(1) of the Administrative Litigation Act provides that a revocation suit shall be instituted within 90 days from the date on which a disposition, etc. is known, and Article 20(2) provides that a revocation suit shall not be filed after the lapse of one year from the date on which the disposition, etc. is taken. "the date on which the party becomes aware of the disposition, which is an additional store," refers to the date on which the party becomes aware of the fact that the relevant disposition was made by means of notice, public notice, or other methods (see Supreme Court Decision 2005Du14851, Apr

Meanwhile, Article 11 (1) of the Framework Act on National Taxes provides that "if a person liable to receive documents falls under any of the following subparagraphs, such documents shall be deemed to have been served pursuant to the provisions of Article 8 14 after 14 days have passed from the date of the public notice of the summary of the documents, and if the person under Article 10 (4) fails to serve the documents at a place where the documents are to be served by registered mail, and such documents are returned due to the absence of the recipient, etc., as prescribed by the Presidential Decree," and Article 7-2 of the Enforcement Decree of the same Act provides that "cases as prescribed by the Presidential Decree" mean cases falling under any of the following subparagraphs:

According to the above facts, the defendant served a tax payment notice on two occasions on the plaintiff's domicile of this case by registered mail, but returned the tax payment notice to the plaintiff's domicile of this case, and again sought to deliver the tax payment notice by visiting the domicile of this case, but failed to deliver it by the plaintiff's absence. Around that time, the payment deadline for the above disposition is overdue, it is reasonable to deem that the plant species for which the above disposition is issued meets the requirements prescribed in Article 11 (1) 3 of the Framework Act on National Taxes and Article 7-2 subparagraph 1 of the Enforcement Decree of the same Act. Therefore, it is apparent in the record that the plaintiff filed the lawsuit of this case on January 14, 2014, which is one year after the expiration of 14 days from October 26, 2011, which is the date service by public notice. Thus, the plaintiff

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff acquired the substitute land (3) with compensation for the expropriation of the land, and thus the instant disposition on the land is unlawful.

2) The Plaintiff (3) had a lot of land acquired substitute land with compensation for expropriation of farmland, etc. identical or similar to the land, and during that period, there was no transfer income tax voluntarily paid and all transfer income tax was reduced or exempted. Therefore, the instant disposition does not comply with equity.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

Article 70 (1) of the Restriction of Special Taxation Act provides that the tax amount equivalent to 100/100 of capital gains tax shall be reduced or exempted for income accruing from substitute land as farmland prescribed by Presidential Decree by a resident prescribed by Presidential Decree residing in the seat of farmland in such a manner prescribed by Presidential Decree, due to the necessity for cultivation of the farmland, and Article 67 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 25211, Feb. 21, 2014) provides that "resident prescribed by inland Ordinance" under Article 70 (1) of the Act means a resident prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport within a Si/Gun/Gu (referring to an autonomous Gu) in which farmland is located (referring to subparagraph 1), a region within a private-Gun/Gu (referring to an autonomous Gu) adjacent to an area referred to in subparagraph 1, and a person who has resided in an area corresponding to an area (subparagraph 3) within 20 kilometers in straight line from the farmland transfer date and who is a resident (including a non-resident).

In light of the following circumstances revealed by the above facts and relevant regulations, namely, Article 67 (1) 1 and 2 of the Enforcement Decree of the Restriction of Special Taxation Act separately from Si/Gun/Gu. Thus, in order to be subject to reduction or exemption of capital gains tax, it is interpreted that a Si established as an autonomous Gu should be adjacent to the relevant Gu, rather than the relevant Si/Gun. The Plaintiff continues to reside in the Gu on August 24, 2004 after moving into the place of residence of this case, and there is no connection between Daegu Metropolitan City, Daegu Metropolitan City, where the place of residence of this case is located, and Yongcheon-si, which is the land location of this case. ② The residence of this case and the land of this case are located far above 30 km, it is reasonable to deem that the Plaintiff does not fall under the resident under Article 70 (1) of the Restriction of Special Taxation Act and Article 67 (1) of the Enforcement Decree of the same Act. Therefore, the Plaintiff’

2) Judgment on the second argument

Even if the Plaintiff was exempted from capital gains tax on the acquisition of another land by substitute acquisition due to the expropriation of land under Article 70(1) of the Restriction of Special Taxation Act, insofar as the Plaintiff’s acquisition of substitute land does not meet the requirements for capital gains tax reduction or exemption under Article 70(1) of the Restriction of Special Taxation Act and Article 70(1) of the Enforcement Decree of the same Act, it cannot be said that it violates equity compared with the case of other land acquired by the Plaintiff. Therefore, the Plaintiff’

4. Conclusion

Therefore, the part of the lawsuit of this case concerning the revocation of the disposition imposing capital gains tax for the year 2007 and the part concerning the revocation of the disposition imposing capital gains tax for the year 2007 and the part concerning the request for cancellation of the disposition imposing capital gains tax for the year 2010 are unlawful and dismissed, respectively.