The lawsuit of this case filed without a request for examination or adjudgment is unlawful as it does not go through a legitimate prior trial procedure.

The plaintiff did not lawfully go through the examination procedure or adjudication procedure as prescribed by the Framework Act on National Taxes before filing a lawsuit seeking revocation of the disposition of this case, and it is difficult to view that the defect was cured because it does not meet the requirements for the pre-trial until the closing of argument of this case. Thus, the lawsuit of this case is unlawful as it was

Article 56 (2) of the Framework Act on National Taxes

2018Guhap10960 Revocation of Disposition of Imposing capital gains tax

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Head of △ District Office

September 6, 2018

October 11, 2018

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 68,438,300 (including additional tax) for the Plaintiff on July 1, 2017 shall be revoked.

1. Details of the disposition;

A. The registration of transfer of ownership in the name of the plaintiff was completed on January 19, 201 as to the land of this case*********** (hereinafter referred to as the "land of this case") on January 20, 201, and the registration of transfer of ownership in the name of Song-A was completed on the land of this case for voluntary auction on May 23, 201, but the plaintiff did not report the transfer income tax.

B. After that, the Defendant conducted a field investigation of capital gains tax on the above land, and subsequently determined and notified the transfer value of the instant land at KRW 235,00,000, and the acquisition value at KRW 68,096,590, and necessary expenses at KRW 455,190, and determined and notified the Plaintiff of KRW 68,438,30 (including additional taxes) of capital gains tax on July 1, 2017 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an objection with the Director of the Regional Tax Office, which was dismissed on November 10, 2017, and the said decision was served on the Plaintiff on December 6, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1, 6 evidence, Eul evidence 1 and 4, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The parties' assertion

Although the Plaintiff acquired the instant land of KRW 35 million by means of exchanging with Lestop, which is operated by the father, the Plaintiff asserted that the instant disposition that calculated capital gains tax based on the conversion acquisition value of KRW 68,096,590 was unlawful, and that the instant disposition was unlawful. Accordingly, the Defendant asserted that the instant lawsuit was unlawful as it was filed without due process of the entire trial.

B. Determination

1) Article 56(2) of the Framework Act on National Taxes provides that any administrative litigation against any illegal tax disposition may not be filed without going through a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon. Articles 61(2) and 68(2) provide that where an objection is filed, a request for evaluation or adjudgment shall be filed within 90 days from the date the decision on the objection is notified. Accordingly, any administrative litigation seeking a revocation of a tax disposition, which is filed without going through a legitimate procedure,

With respect to this case, before filing a lawsuit seeking revocation of the disposition of this case, the Plaintiff did not lawfully undergo the examination procedure or adjudication procedure as prescribed by the Framework Act on National Taxes, and it is difficult to view that the defect was cured due to the failure to meet the pre-examination requirements until the closing of argument of this case. Thus, the lawsuit of this case is unlawful since it was filed without lawful pre-trial

2) As to this, the Plaintiff had completed the procedure of raising an objection that can be deemed identical to the request for examination or adjudgment, the Plaintiff ought to be deemed to have undergone the procedure of a previous trial. ② Article 18(2) and (3) of the Administrative Litigation Act provides for exceptions to the procedure of a previous trial when there is an urgent need to prevent a serious loss resulting from the enforcement of a disposition, or when other justifiable grounds exist. In this case, the Plaintiff asserts that there exist such exceptions.

Therefore, the health unit, ① the Framework Act on National Taxes clearly separates the filing of an objection, a request for examination or a request for adjudication (Article 66).

② In full view of the fact that Article 56(2) of the Framework Act on National Taxes clearly provides that “A request for examination or adjudgment and a decision thereon shall not be filed without filing an administrative litigation,” and that a request for examination or adjudgment may be filed within 90 days from the date of service of a written decision on a request for objection (not a lawsuit may be filed) is not the same as that of a request for examination or adjudgment under the Framework Act on National Taxes. In conclusion, the Plaintiff’s assertion on this part cannot be accepted on different premise. Furthermore, Article 56(2) of the Framework Act on National Taxes excludes the application of Article 18(2) and (3) of the Administrative Litigation Act, which provides for the relaxation of the principle of deferment, considering the special nature of the disposition of taxation, as such, this part of the Plaintiff’

3) However, in tax administration, where two or more administrative dispositions for the same purpose were conducted in the course of step-by-step and development, and are related to each other, the tax authority changed the taxation disposition subject to such disposition while in the course of tax litigation and the grounds for illegality are common, or where several persons are liable for the same obligation through the same administrative disposition, one of the persons liable for tax payment and the National Tax Tribunal granted an opportunity to re-determine the basic facts and legal issues, such as when one of the persons liable for tax payment and the taxpayer were given an opportunity to further determine the same obligation through legitimate step-by-case procedures. Furthermore, if there are justifiable reasons such as where the taxpayer seems to be harsh to have caused a tax obligor to go through the pre-trial procedure, the taxpayer may file an administrative lawsuit claiming the revocation of the taxation disposition even without going through the pre-trial procedure (see, e.g., Supreme Court Decision 2005Du10170, Apr. 14, 206). However, the instant disposition is difficult to view that the transfer value of the land of the Defendant’s disposition constitutes an excessive conversion of transfer income tax base.

3. Conclusion

Therefore, we decide to dismiss the lawsuit of this case and decide as per Disposition.