National Tax Service Review and Transfer 2011-0303 (2012.06)

Notice of refusal to file an appeal after the lapse of the time limit shall not be subject to the appeal

A request for correction filed after the lapse of three years from the statutory due date of return of capital gains tax does not constitute a rejection disposition subject to appeal even if the tax authority refuses a request for correction by the taxpayer because it is merely an act of fact requiring the tax authority to file a request for correction.

2012Gu 11334 Revocation of disposition of capital gains tax rectification

XX Kim

Head of the Do Tax Office

September 19, 2012

October 24, 2012

1. The instant lawsuit shall be dismissed.

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

The defendant's disposition rejecting a request for correction of capital gains tax against the plaintiff on September 19, 2011 shall be revoked.

1. Facts of recognition;

A. On October 11, 1978, KimA completed the registration of ownership transfer with respect to each of 1/6 shares out of 00 square meters in Mapo-gu, Seoul, 000 large 5625 square meters, 000-2 large 1190 square meters in that 00-4 large 1 square meters in that 00-5 large 863 square meters in that 00-6 large 687 square meters in that 000-6 large 687 square meters in that 00-7 large 1542 square meters in that 00-7 large 2302 square meters in that 00-8 large 2302 square meters (hereinafter referred to as the “instant land”).

B. After that, as KimA died on October 4, 2004, the Plaintiff, KimB, and KimCC jointly inherited each of the 1/6 shares owned by KimA among the instant land according to the respective share ratio of 2/54 shares, and 3/54 shares, and completed the registration of ownership transfer according to the respective share ratio on December 23, 2004.

C. However, on June 30, 2005, Mapo-gu Seoul Metropolitan Government, where the land of this case is located, was designated as an area in which transfer margin is calculated (hereinafter referred to as "designated area") under Article 96 (1) 7 of the former Income Tax Act (amended by Act No. 8144, Dec. 30, 2006; hereinafter the same shall apply). After that, the land of this case is included in the site of P2 district (No. 2004-365, the Ministry of Construction and Transportation announced on December 3, 2004), the Plaintiff et al. again purchased its shares among the land of this case to Nonparty E&S Corporation, the implementer of the above public works project, and transferred its share in accordance with Article 96 (1) 4 of the former Income Tax Act (amended by Act No. 8144, Dec. 30, 2006); the Plaintiff and KimB et al., al., 2006, notified the Seoul High Court's 2006.

E. On July 20, 201, the Plaintiff filed a request with the Defendant for correction to the effect that the transfer margin is to be calculated again by applying the transfer income tax on the Plaintiff’s share among the instant land as the standard market price. However, on September 19, 2011, the Defendant notified the Plaintiff of the fact that the period for filing a request for correction under Article 45-2 of the Framework Act on National Taxes has expired (hereinafter “instant notification”), and thereafter, refund KRW 00 of the transfer income tax pursuant to the application of the standard market price by treating the said request for correction as the civil petition for grievance thereafter.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence No. 1, the purport of the whole pleadings

2. Determination on the legitimacy of a lawsuit

A. The parties' assertion

The Plaintiff asserts that the transfer margin of the instant land falls under Article 85 of the former Restriction of Special Taxation Act (amended by Act No. 8050 of Oct. 4, 2006), and that the transfer margin of the instant land should be calculated on the basis of the standard market price, and that in the case of the Plaintiff, when the judgment (reconciliation with the same effect as the judgment) pursuant to Article 45-2(2) of the Framework Act on National Taxes became final and conclusive (reconciliation with the same effect as the judgment) pursuant to Article 45-2(2) of the Framework Act on National Taxes, the period for filing a request for correction was observed on July 20, 201, which is within two months from May 30, 201, and even if the Plaintiff’s request for correction was not accepted, the rejection of the Plaintiff’s

In regard to this, the defendant is the person who filed an administrative litigation in relation to the land in this case, KimB, and KimD, and thus, Article 45-2 (2) 1 of the Framework Act on National Taxes does not apply to the plaintiff as the judgment does not become effective, and thus, a claim for correction shall be filed within three years from the statutory due date of return by falling under Article 45-2 (1) of the same Act. The defendant notified the plaintiff that the defendant could not process the above claim for correction because he did not comply with this, but this cannot

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

If an administrative agency’s refusal to perform an action following a citizen’s affirmative filing of an application constitutes an administrative disposition that is subject to an appeal litigation, the filing of the application must be an exercise of public authority or a similar administrative action; and the refusal should cause any change in the applicant’s legal relationship; and the citizen should have the right to file an application under the law or sound reasoning demanding the action (see, e.g., Supreme Court Decisions 2001Du10936, Sept. 23, 2003; 2004Du12469, Feb. 25, 2005). Furthermore, pursuant to Article 45-2(1) and (3) of the Framework Act on National Taxes, a person who has filed a tax base return by the statutory due date of return may file a request for correction with the head of the competent tax office within three years after the statutory due date of return expires; and where there is a judgment, etc. in an exceptional lawsuit related thereto, a person who has filed a tax base return may file a request for correction, etc. within two months after

In this case, as to whether the plaintiff is a person subject to Article 45-2 (2) of the Framework Act on National Taxes and the facts of the above recognition, since KimBB and KimD in relation to the transfer income tax on the land of this case filed an administrative litigation, but the plaintiff did not bring an action, the plaintiff does not become a person subject to the above provision. In addition, the plaintiff filed a request for correction after three years from the statutory due date of return of the transfer income tax ( May 31, 2007). Since the request for correction filed after the lapse of the deadline is not a subjective public right exercise, it is not a fact that the taxpayer is not a subjective public right exercise, but merely a fact that the tax authority simply denies the request for correction filed by the tax authority, the refusal disposition that is subject to the appeal shall not be constituted.

D. Sub-committee

Therefore, the instant notice cannot be deemed as a rejection disposition subject to appeal, and thus, the instant lawsuit is unlawful.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.