Even if the Plaintiff, a non-resident, voluntarily reported excessive capital gains tax, the State's liability for damages does not occur.

Even if the Plaintiff, as a non-resident, voluntarily reported capital gains tax without applying the special deduction rate for long-term possession of one house for one household, the State's liability for damages will not occur.

Seoul Central District Court-2015-Ban-206308

00

Korea

2016.05.03

2016.05.19

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant KRW 160,413,299 and its duplicate from December 14, 2010 to the Plaintiff.

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5% per annum and 15% per annum from the following day to the date of complete payment;

(n)

1. Basic facts

A. The Plaintiff acquired on May 8, 2001, as a Canadian citizen, H (hereinafter “instant apartment”) from May 8, 2001, and transferred it to Nonparty AA and BB on September 8, 2009.

B. On September 4, 2009, the Plaintiff owned the apartment of this case for not less than eight years under the former Income Tax Act (Law No. 1983, May 4,

Pursuant to Article 95(2) of the former Income Tax Act (Act No. 9785, hereinafter referred to as "former Income Tax Act"); and

24% of the special long-term holding deduction rate applicable at the time of transfer of a building (not less than 8 years but not more than 9 years in Table 1 of the same paragraph)

x) applying capital gains tax to 263,595,110 won and resident tax 26,359,510 won were paid.

[Reasons for Recognition: Each entry of Gap evidence 1 to 4 (including branch numbers), and a statement before oral argument

[Purpose of Body]

2. Related statutes;

It is as shown in the attached Form.

3. The plaintiff's assertion

(a) In cases of non-residents, a return and payment of capital gains tax before tax liability is determined;

A certificate of personal seal impression for sale is essential to proceed with the procedure of transferring registration of sale real estate.

In the case of a non-resident with capital gains, the proviso to Article 13(3) of the Enforcement Decree of the Certification of Seal Imprint Act

The director of the tax office must obtain the confirmation of the non-resident who is a Korean national residing abroad, for real estate sale.

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If the director of the tax office requests the issuance of a certificate of seal imprint, he/she shall accurately report the capital gains tax in accordance with statutes.

In the case of non-residents because they agree to issue certificates of seal imprint in practice only when paid.

for sale of real estate, the status of the taxpayer being liable for tax payment before such sale.

section 1.

Tax payment prior to selling real estate through the confirmation procedure of the head of a tax office;

The reasons for imposing no tax shall be the amount before the sale of the real estate to the non-resident whose taxation claim is unstable.

The purpose of the Do income tax in full is to prevent the tax claim loss from being deferred, and the above,

In practice the procedures for non-residents to be issued with a certificate of personal seal impression for sale.

In other words, the non-resident is confirmed through the transit of his/her seal imprint in a foreign country.

The time of transfer under the Income Tax Act is not yet effective, and under the Framework Act on National Taxes and the Income Tax Act.

Realistically, transfer income tax must be reported and paid before the tax liability is established (determined).

The obligations shall be granted from the competent authorities.

The plaintiff, accordingly, received only part payments from the buyer while selling the apartment of this case.

The remainder is not received, and the Korean national residing abroad on September 4, 2009.

With the introduction of the transfer income tax, the transfer income tax was reported and paid.

B. Grounds for damages caused by the tort

Article 154(1) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 22516, hereinafter the same shall apply) provides "President".

“One house for each household as determined by the resident or his spouse” shall have the same domicile or temporary domicile as that of the resident or his spouse.

The date of transfer by one household (hereinafter referred to as "one household") comprised of members living together with the family members living together in the same household.

Re-one house is held, and the tax authorities have long-term possession of the above provision.

The apartment of this case is subject to Article 95 (2) of the former Income Tax Act, which provides the special deduction rate.

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applicable Table 1, other than Table 2 of the same paragraph, to the long-term holding special deduction rate arising in the course of sale;

was made.

However, the former Income Tax Act, which was applied at the time of selling the apartment of this case, is against the nonresident.

With respect to the taxation of capital gains tax, the former Income Tax Act does not have any individual provision differently from residents.

Article 121(2) provides only the general provision that "tax shall be levied in the same manner as that of residents."

Nevertheless, the tax authorities have the meaning of "tax imposed in the same manner as residents".

The ratio of special deduction for long-term holding under the proviso to Article 95 (2) 3 of the Income Tax Act shall apply.

In accordance with the principle of no taxation without law, the scope of application is arbitraryly authoritative to non-residents

The proviso of Article 95(2)3 of the former Income Tax Act excluded the application of the same paragraph.

special deduction for long-term holding should also be applied to non-residents, but otherwise,

tax authority's determination that the above proviso is not applicable to the State Compensation Act

This is a case of "damage caused to others by negligence in violation of the law".

In other words, tax authorities apply the special deduction rate for long-term holding of the proviso of the same paragraph to nonresidents.

The scope is limited to residents, and thus, the scope is limited to the non-resident.

The tax payer shall be required to report and pay, and if it is violated, it shall be imposed separately.

The proviso of Article 95 (2) 3 of the former Income Tax Act and the Gu against the non-resident.

In applying Article 159-2 of the Enforcement Decree of the Income Tax Act, one household shall replace "resident" as "non-resident".

(n) the non-resident and his spouse are living together at the same address or same place of residence;

It is reasonable to interpret "one household composed together with satisfaction" and such authoritative interpretation by the tax authority as above.

public official’s negligence against the principle of no taxation without law is due to the non-resident’s negligence.

In accordance with the Ministry of Strategy and Finance and the National Tax Service's established rules, capital gains tax has been paid to the State.

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The negligence of a public official under Article 2 (1) of the Commercial Act constitutes a violation of the law.

I would like to say.

Due to such unlawful statutory construction by the tax authority, the Plaintiff (i.e., 160,431,299)

additional payment of capital gains tax of 145,846,636 + resident tax of 14,584,663 which has been paid by mistake shall be made.

The Plaintiff suffered damages equivalent to the same amount of the capital gains tax and resident tax voluntarily. The Plaintiff is a new resident tax.

Although this was made and paid, according to the established rules and authoritative interpretation of the Ministry of Strategy and Finance and the National Tax Service at that time.

The ratio of special deduction for long-term possession of non-residents shall not exceed 30%, and the former Income Tax Act

95. The ratio of special deduction for long-term possession under the proviso of paragraph (2) does not apply and sales of real estate.

to be issued with a certificate of personal seal impression for sale, which is a document required for

The existing interpretation of the tax authority in violation of the no taxation without representation because the transfer income tax was reported.

Pursuant to the report and payment, the Plaintiff reported and paid the grievance on November 2015, which became aware of the erroneous or erroneous payment.

The tax office has received relief through the request, but the tax office has already received the relief for the portion of 2009

Since the period of exclusion has elapsed 5 years in detail, damages arising from illegal acts cannot be refunded because it cannot be refunded.

It leads to a claim.

3. Determination

A. Legal doctrine

Article 95 of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007; hereinafter the same shall apply) Article 95

Paragraph (1) shall be calculated by deducting necessary expenses from the transfer value, and from such amount (transfer marginal profits).

Paragraph (2) provides that special deduction for long-term holding shall be calculated by deducting the amount of special deduction for long-term holding.

For those holding period of at least three years of land or a building, calculation shall be made in accordance with the following classifications:

The proviso of subparagraph 3 (hereinafter referred to as "the proviso of this case") provides that the amount shall be the same.

- - Other

“In the case of one house for one household as determined by the Presidential Decree subject to the levy of transfer income tax, the period of possession;

Simplified 15 or more years of transfer margin shall be 45/100 of transfer margin, and by delegation thereof.

Enforcement Decree of the former Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter the same shall apply)

Article 159-2 shall be transferred by one household for one house for one household as prescribed by the Presidential Decree in the proviso of this case.

as of the date, it means a house if it owns one house in Korea.

The term "one household" under Article 154 (1) of the former Enforcement Decree of the Income Tax Act is a resident and any of them.

A spouse shall be comprised of the family members who make a joint living at the same address or same place of residence as his spouse.

On the other hand, Article 121 (2) of the former Income Tax Act provides that "one household" shall transfer land or buildings.

Provisions that "tax shall be imposed on a nonresident with income, etc. in the same manner as that of a resident"

(1) Under the principle of no taxation without the law, tax laws and regulations are governed by the law, unless there are special circumstances.

(2) Article 121 of the former Income Tax Act

The term "tax income tax" as referred to in paragraph (2) means the income amount, tax base and tax amount;

It is meaningful that the same method as the resident should be applied in calculating the amount of tax, etc.

(1) The proviso of this section provides for the items to be deducted in calculating capital gains, and the non-resident.

In full view of the facts that the proviso of this case can meet the requirements, the proviso of this case also applies to non-residents.

It is reasonable to interpret that the same applies as it is (see Supreme Court Decision 2009Du21147 decided July 14, 201).

§ 6).

From this point of view, the old lawsuit applied at the time when the plaintiff sold the apartment of this case

Tax Law has separate individual provisions on the taxation of capital gains on non-residents, unlike residents.

In addition, Article 121 (2) of the former Income Tax Act provides that "tax shall be levied in the same manner as that of a resident."

As alleged by the plaintiff, the proviso of Article 95 (2) 3 of the former Income Tax Act provides only the provision.

- - Other

The special long-term holding deduction should also be applied to non-residents.

B. However, even based on the Plaintiff’s assertion, the Plaintiff erroneously paid capital gains tax of KRW 160,413,299.

The reason is that a public official of the tax authority affiliated with the defendant imposes tax on the plaintiff.

It is not due to any active act, but due to the plaintiff's own reasonable tax amount.

The reason is that the Plaintiff reported capital gains tax exceeding KRW 160,413,299.

B The reasons for the erroneous payment is that it was paid according to the plaintiff's own judgment and action, and that it was the defendant.

There is no fact that a public official imposed tax on the plaintiff.

Furthermore, the Ministry of Strategy and Finance and the National Tax Service, which is an institution affiliated with the defendant, and one household for non-residents;

Rules under which the special deduction rate for long-term possession of housing shall not apply (hereinafter referred to as "established Rules of this case").

C) The fact that the Plaintiff enacted and authoritative interpretation did not immediately cause any damage to the Plaintiff.

As such, the Ministry of Strategy and Finance and the National Tax Service established and authoritative interpretation of the rules of this case.

The act itself cannot be a tort against the plaintiff. Ultimately, the defendant cannot be a tort against the plaintiff.

Since there is no tort, there is no claim for damages against the plaintiff against the defendant.

shall not be required.

C. The plaintiff, without mediating other enforcement acts, is in its own position without any notice as to this.

administrative disposition when it has a nature to regulate specific rights and obligations or legal relations of nationals

(b) The corresponding U.S. Supreme Court Order 2003No23 Decided October 9, 2003) (Supreme Court Order 2003No23 Decided October 9, 2003)

The established rules of this case, which do not apply the special long-term holding deduction for one house, shall be established, accordingly.

Since continuous and repetitive dispositions have been made, the above established rules have specific rights and duties or legal officers of the people.

(1) The public official in charge of the defendant directly disposes of to the plaintiff.

Thus, the enactment of the established rules of this case asserts that they constitute a tort.

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(d) Administrative dispositions subject to an appeal litigation shall be those under the public law of an administrative agency, which are specific matters;

set up a right by law, order obligations, and other legal effects.

shall be an act directly related to the rights and obligations of the people, and without mediating other acts of enforcement.

It, in itself, causes a direct change in the specific rights and obligations or legal relations of the people.

Other general and abstract statutes can not be subject to such statutes (Supreme Court Order September 10, 1994).

[Plaintiff-Appellant] Plaintiff 1 and 3 others (see, e.g., Supreme Court Decisions 2005Du15168, Apr. 12, 2007; 2005Du15168, Feb. 2

If the market has a general and abstract character, it falls under a law order or administrative rule;

specific rights and duties or legal relations of the people directly as such without mediating other enforcement acts.

If a regulation has a character to regulate, it is an administrative disposition subject to an appeal litigation (Supreme Court).

See Supreme Court Order 2003No23 dated October 9, 2003

The special deduction rate for long-term holding of one house per household may be applied to scam, and to non-residents.

The tax authority’s enforcement act solely on the sole basis of the existence of the established rule of this case that does not exist

immediately, without applying the special long-term holding deduction for one house per household to the Plaintiff.

No transfer income tax shall be paid to the Plaintiff, and the transfer income tax shall be paid to the Plaintiff.

(2) If the tax authority imposes capital gains tax on the Plaintiff, the tax authority may impose capital gains tax on the Plaintiff.

in this case, the tax authority shall act directly on behalf of the plaintiff.

recognition that there was no direct enforcement due to the absence of any taxation disposition.

as stated in Korea.

In the event of this circumstance, by the enactment of the rules of this case by the public official in charge of the defendant

The administrative disposition against the plaintiff shall not be deemed to have been taken, and the public official in charge of the defendant shall not be deemed to have been

the Plaintiff’s unlawful conduct asserted by the Plaintiff because the Plaintiff did not do any specific act or disposition

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The above does not exist in itself.

On the other hand, the National Tax Service shall decide on the non-resident before the Supreme Court and the Board of Audit and Inspection.

a consistent determination that it is not subject to the special long-term holding deduction rate for one house per household;

In light of the characteristics of the reporting taxation system, the characteristics of the long-term possession by the Plaintiff at the time of transfer income tax.

If a report was made by applying the separate deduction rate to 64%, the tax authority rejected it, or investigated and corrected it.

Since the rule of this case is obviously clear, the rule of this case is the rights and duties of the people or the legal officers.

It argues that the disposition itself is recognized as a general disposition, which is directly applied to the public.

In light of the Plaintiff’s assertion, the established rules of this case are specific enforcement acts.

not mediating the above, in itself, cause a direct change in the specific rights and obligations of the people.

Since it is not a general and abstract provision, the plaintiff's assertion is accepted.

subsection (b).

E. Therefore, the enactment of the established rules of this case by the public official in charge of the defendant, against the plaintiff

The plaintiff's assertion that it constitutes a tort is without merit (the defendant's tort against the plaintiff).

as long as it was determined that there was no statute of limitations defense of the defendant, further review of the defendant

[I shall not be avoided]

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.