National High Court Decision 2008west 2990 (No. 30, 2008)

Whether the notice of payment without preliminary return of capital gains tax constitutes an administrative disposition subject to revocation litigation

It is merely a collection disposition for the collection of the finalized tax, and it cannot be deemed as a subject of revocation lawsuit, if the taxpayer notifies the tax authority that the taxpayer should pay the same amount as the reported tax without any correction on the tax base and tax amount because the taxpayer did not pay the tax amount.

The contents of the decision shall be the same as attached.

Article 22 (Additional Dues for National Tax Collection Act)

Article 105 (Preliminary Return of Tax Base of Transfer Income)

1. The instant lawsuit shall be dismissed.

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

The Defendant’s purport of the claim is revoked on June 8, 2008 the disposition of tax payment notice, which was imposed by the Plaintiff on the Plaintiff on June 8, 2008 by setting the payment period as the capital gains tax amounting to KRW 112,572,00 and the surcharge and increased surcharge as of June 30, 2008.

1. Details of the disposition;

In full view of the purport of the whole pleadings, the following facts may be acknowledged in the entries of Gap evidence 1, Eul evidence 3-1, Eul evidence 2, Eul evidence 1, Eul evidence 2-1, and Eul evidence 2-3:

A. On January 22, 2008, the Plaintiff transferred the golf membership owned by ○○○○○○ club on its own, and applied for a preliminary return on the tax base of capital gains tax to the Defendant on January 31, 2008, but did not pay the scheduled tax amount.

B. On June 8, 2008, the Defendant issued a payment notice to the Plaintiff to the effect that, on June 30, 2008, KRW 112,572,00,00, which was the amount for which the Plaintiff excluded the tax credit for the preliminary return from the amount of the preliminary return paid, should be paid by June 30, 2008, and if the Plaintiff did not pay it, the Defendant paid the additional amount of KRW 3,377,160, and the increased additional amount of KRW 1,350,860 until August 31, 2008 (hereinafter “instant payment notice”).

2. Determination on the legitimacy of the instant lawsuit

A. The plaintiff's assertion

The plaintiff asserts that the transfer income tax belonging to 2008 should be paid by the final return from May 1, 2009 to May 31, 2009 pursuant to the provisions of Articles 110 and 111 of the Income Tax Act, and this legal principle does not change because the plaintiff made a preliminary return on the said transfer income tax, the defendant issued a payment notice by setting the payment deadline of the transfer income tax on June 30, 2008 on the ground that the plaintiff made a preliminary return on the said transfer income tax, and made a payment notice by setting the additional dues and increased additional dues to the extent that the plaintiff did not specify the subject matter of taxation, and the "object subject to taxation" did not specify the subject matter of taxation, and thus, the instant payment notice is illegal taxation.

(b) Related statutes;

Article 22 (Determination of Liability for Tax Payment)

Article 10-2 (Determination of Tax Liability)

Article 21 (Additional Dues)

Article 22 (Additional Dues for National Tax Collection Act)

Article 105 (Preliminary Return of Tax Base of Transfer Income)

소득세법 제106조 (예정신고자진납부)

Article 108 (Deduction of Tax Amount paid by Preliminary Return)

Article 110 (Final Return on Tax Base of Transfer Income)

Article 111 (Final Return of Income Tax Act)

Article 116 (Collection of Transfer Income Tax)

C. Determination

According to the provisions of Article 22 of the Framework Act on National Taxes, Article 10-2 of the Enforcement Decree of the same Act, and Articles 105, 106, and 116 of the Income Tax Act, capital gains tax shall be construed as having an obligation to pay the same amount as the return, which is determined at the time of the preliminary return of the tax base and tax amount by a taxpayer. The fact that a taxpayer merely files a preliminary return of the tax base and tax amount and notifies a taxpayer that he/she should pay the same amount as the return without any correction on the matters reported by the tax authority because he/she did not pay the tax amount is a collection disposition for the collection of the finalized tax, and cannot be deemed as a taxation subject to a revocation lawsuit (see, e.g.,

According to the above facts, the plaintiff's preliminary return on the tax base of capital gains tax against the defendant on January 31, 2008 is recognized, so it is reasonable to deem that the plaintiff's capital gains tax was obligated to determine and pay the tax amount at the time of the above preliminary return. Accordingly, the plaintiff's assertion that no capital gains tax liability does not accrue until May 31, 2009, which is the date of the final return and payment notwithstanding the preliminary return on capital gains

In addition, according to the above facts, it is recognized that the Plaintiff did not pay the tax base and tax amount of capital gains tax and did not pay the tax amount so that the Defendant would pay the same tax amount as the reported matters without any correction. The instant notice of payment is merely a collection disposition for collecting the determined tax, but cannot be deemed as a tax disposition subject to revocation lawsuit.

On the other hand, since additional dues or aggravated additional dues provided for in Articles 21 and 22 of the National Tax Collection Act naturally arise pursuant to the provisions of the Act without a final procedure by the tax office, if national taxes are not paid by the payment deadline, it cannot be deemed that the notice of additional dues or increased additional dues is subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Thus, it cannot be deemed that the disposition subject to revocation lawsuit following the notice of the additional dues and increased additional dues included in the instant notice

Therefore, the lawsuit of this case also argues to the effect that the plaintiff can be subject to appeal as a collection disposition of the payment notice of this case (the plaintiff can be subject to appeal as the collection disposition of the payment notice of this case. However, in light of the fact that the plaintiff mainly raised as the lawsuit of this case is a tax obligation of capital gains tax, additional dues, and increased additional dues, the plaintiff seems to dispute the payment notice of this case as a taxation disposition of this case, and such judgment is inappropriate as it is against the purport that the plaintiff cannot be subject to the collection disposition of the payment notice of this case, and it does not change the expression into the collection disposition of this case

3. Conclusion

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