The early trial 2015 Mine523 ( February 24, 2016)

Extinctive prescription is applicable to collection disposition, and the extinctive prescription is calculated from the day following the deadline for payment.

Extinctive prescription is applicable to a collection disposition that is not a disposition, and the extinctive prescription of a collection disposition is completed, not immediately unlawful. In addition, given that a disposition of imposition is conducted before the exclusion period expires pursuant to the special exclusion period, extinctive prescription of the collection right is calculated from the day following the due date for payment by the instant disposition.

Article 26-2(1) of the Framework Act on National Taxes, Article 26-2(2) of the Framework Act on National Taxes, Article 27(1) of the Framework Act on National Taxes, and Article 27(1) of the Framework Act

Jeonju District Court-2016-Gu Joint-1216 ( December 15, 2016) revocation of revocation of the imposition of additional tax.

AA

000 director of the tax office

November 17, 2016

December 15, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 72,228,680 on September 1, 2015 against the Plaintiff of KRW 72,228,680 is revoked.

1. Details of the disposition;

A. On December 23, 2001, the Plaintiff purchased 710,000,00 won ** Dong****7 large 242.3 square meters and its underground floors, and the 5th floor above the ground (hereinafter referred to as the “instant real estate”).

B. The Plaintiff sold the instant real estate to the Plaintiff*, Sep. 17, 2002,*, this**, after selling the instant real estate to the Plaintiff*, Nov. 21, 2002*, this** completed the registration of ownership transfer for the instant real estate.

C. On January 30, 2003, the Plaintiff filed a preliminary return on the tax base of capital gains tax on the instant real estate, calculated the transfer value of KRW 737,00,000, and the acquisition value of KRW 710,000,00, and reported and paid capital gains tax of KRW 757,156.

D. On June 8, 2012, on the ground that the transfer value of the instant real estate was confirmed to be KRW 850,00,000, the Defendant denied the details of the report, and subsequently corrected and notified the amount of KRW 113,65,850 deducted from the calculated tax base of KRW 120,173,80, tax rate of KRW 36%, tax rate of KRW 43,262,568, additional tax of KRW 73,790,939, and all kinds of deductible tax amount of KRW 841,284, capital gains tax of KRW 116,212,220 (hereinafter “prior disposition”), and on September 17, 2012, the Defendant corrected and notified the error of the aggregate income amount of KRW 2,546,370.

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 31, 2012. However, the Tax Tribunal dismissed the appeal on November 13, 2012. Accordingly, the Plaintiff filed a lawsuit for revocation of imposition of capital gains tax and additional tax and filed an appeal with the court of first instance (former District Court 2013Guhap200058) upon dismissing the appeal in the judgment of dismissal and appellate court (2014Nu4777). The Supreme Court of final appeal (Supreme Court Decision 2014Du4434) rendered on June 8, 2012 on the grounds that the Defendant did not separately state the amount of penalty tax and the calculation basis for additional tax in the disposition of capital gains tax imposed by the Defendant on the Plaintiff on the grounds that the tax payment notice of capital gains tax imposed by the Defendant was partially accepted by the Plaintiff, and remanded only the part concerning imposition of capital gains tax in the judgment of the lower court (Seoul High Court 2015Nu313, previous Jeju High Court 2015.).

F. On July 23, 2015, the Defendant corrected the amount of penalty tax of KRW 72,228,680 from the capital gains tax in accordance with the instant judgment, and subsequently imposed penalty tax of KRW 3,981,694 and penalty tax of KRW 68,228,680 on September 1, 2015, by applying the special provisions on the exclusion period under Article 26-2(2) of the Framework Act on National Taxes, stating the grounds for calculating the relevant tax amount (hereinafter “instant disposition”).

G. On November 7, 2015, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on November 7, 2015, but the Tax Tribunal dismissed the appeal on February 24, 2016.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The exclusion period of imposition is Do.

In the prior disposition of this case, the imposition of additional tax in itself was not specified, and the disposition of this case under the pretext of complying with the purport of the judgment of this case is completely different from the prior disposition of this case.

The special provisions of Article 26-2(2) of the Framework Act on National Taxes cannot be applied to the exclusion period of the imposition of national taxes. The instant disposition is unlawful since June 1, 2003, when the period of exclusion from the imposition of national taxes is calculated from June 1, 2003, when the period of the final return of tax base of the transfer income tax accrued in 2002 expires

2) Extinctive prescription of the collection right

The instant disposition is deemed unlawful after the extinctive prescription of the right to impose and collect taxes from June 1, 2003 to May 31, 2008, which is the day following the statutory time limit for payment.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Purport of the exclusion period of imposition

The reason for setting the exclusion period under Article 26-2(1) of the Framework Act on National Taxes (hereinafter referred to as the "ordinary exclusion period") is that a taxpayer subject to a disposition of imposition of tax after a long period of time has already been forgotten, and that it is difficult for the taxpayer to defend him/her effectively due to the absence of relevant data, and that the State has a considerable basis for human and material resources and legal assistance to support the exercise of the right to impose tax, including the right to impose tax, and rather, it would be desirable to induce the state to exercise the right to impose tax as soon as possible.

On the other hand, the special exclusion period under Article 26-2(2) of the Framework Act on National Taxes, after the revocation of the prior disposition has become final and conclusive in the procedure of litigation on the prior disposition and the tax authority newly issues a tax disposition related to the prior disposition, may take a long time until the date of the prior disposition. Therefore, even in cases where the re-disposition is necessary, the possibility of the re-disposition is prevented by the ordinary exclusion period, thereby ensuring the burden of tax payment through the proper application of

2) Interpretation of the scope of application of the special exclusion period

When establishing the scope of application of the special exclusion period, it seems that the following elements should be considered:

(1) The special exclusion period is extended to the tax authority for a certain period of time even after the lapse of the ordinary exclusion period, and where the request for fair taxation is strong that taxpayers should bear a reasonable amount of tax than the infringed rights and interests of taxpayers, the re-disposition for the benefit of the tax authority can be justified.

② Since the taxation disposition is divided by the taxation unit and the re-disposition by the special exclusion period has already expired, it is reasonable to allow the tax authority to re-disposition within the same taxation unit in principle, and even if the initial disposition and re-disposition are not the same taxation unit, it can be deemed that the subsequent disposition is planned in the judgment, etc. because it is considerably closely related to the same taxation unit, and it is necessary to allow the re-disposition exceptionally in case where a request for fair taxation is more than the legal stability of the taxpayer

③ If the judgment, etc. on taxation can be deemed to have been scheduled to supplement the illegal matters in light of the contents and purport of the decision, it should be interpreted that it is possible to re-disposition by the special exclusion period.

3) Determination on the exclusion period of imposition and argument in the instant case

In light of the following circumstances, considering the above facts acknowledged as Gap evidence No. 1 and the overall purport of the pleadings, the defendant can be deemed to have imposed penalty tax upon the transfer of the plaintiff's real estate under the special exclusion period. Thus, the defendant's disposition of this case on September 1, 2015, which was before the lapse of one year from July 14, 2015, which was the date when the judgment of this case became final and conclusive, is not unlawful. Accordingly, this part of the plaintiff's assertion is without merit.

① Article 47(2) of the Framework Act on National Taxes provides that penalty taxes shall be the item of national tax under the tax-related Acts providing that the relevant obligation is also a national tax. The prior disposition in this case and the disposition in this case are the same as the taxation unit and the tax item as the penalty tax for the transfer income tax belonging to the year 2002 on the Plaintiff’s transfer of the instant real estate.

② The judgment of this case is based on the following facts: (a) the Defendant imposed the Plaintiff the penalty tax in bad faith in filing a transfer income tax return and the penalty tax in bad faith in filing a tax payment notice; and (b) the penalty tax is revoked on the ground that there were procedural defects in the tax amount and the calculation basis for each type of penalty tax without stating such procedural defects; and (c) the Defendant planned subsequent disposition that supplements unlawful matters

③ In the previous administrative litigation (former District Court Decision 2013Guhap200058, Gwangju High Court Decision 2014Nu4777 and Supreme Court Decision 2014Du4434), the Plaintiff asserted each substantial defect in the imposition of principal tax and additional tax in addition to the procedural defect in relation to the notice of tax payment regarding the preceding disposition, but the principal tax is not accepted in entirety and the decision became final and conclusive on the basis of the original disposition. If circumstances exist, the Plaintiff was aware of the imposition of additional tax at the time of the instant preceding disposition. If the imposition of additional tax in the instant preceding disposition is revoked due to the judgment of this case, the Defendant could have been able to expect that the penalty would be imposed again by specifying the basis for calculation by each additional tax. Therefore, there is no problem of protecting taxpayer’s trust or the loss of data related to taxation.

④ If the instant disposition was rendered prior to the final and conclusive judgment on the previous disposition, due to concerns about the level of the ordinary exclusion period, there was no room for the issue as to whether the special exclusion period would be applied, and in such a case, it would be more unfavorable and harsh circumstances to the Plaintiff as a taxpayer.

4) Determination as to the claim for expiration of the statute of limitations

Article 27(1) of the Framework Act on National Taxes provides that the extinctive prescription of the State’s right to collect national taxes shall expire if it is not exercised for five years from the time when it is possible to exercise the right. Article 12-4(1)1 of the Enforcement Decree of the Framework Act on National Taxes provides that the reported amount of national taxes is determined by the return of tax base and the amount of tax, and Article 12-4(1)2 of the Enforcement Decree of the Framework Act on National Taxes can exercise the State’s right to collect national taxes from the following day of the statutory due date of payment of the tax return, if the government determines, revises, or occasionally imposing the tax base and the amount of tax, and Article 27(1) of the Enforcement Decree of the Framework Act on National Taxes from the following day of the due date of

2) In the instant case, the exclusion period for imposition of capital gains tax on the Plaintiff’s transfer of the instant real estate is ten years from June 1, 2003 (No. 2014Nu4777). However, even though a problem arising from double taxation may arise, it is apparent that the tax authority can still hold double-paid taxes until the judgment becomes final and conclusive, and the taxpayer is harsh.

According to the language, contents, etc. of the relevant Acts and subordinate statutes, the instant disposition that the Plaintiff seeks revocation is not a collection disposition, and the extinctive prescription applies not to a collection disposition, and thus, does not immediately constitute an unlawful disposition even if the extinctive prescription of the collection disposition has expired. In addition, as seen earlier, the instant disposition was rendered before the exclusion period has expired pursuant to the special exclusion period provisions, the extinctive prescription of the collection right shall be calculated from the day following the payment period pursuant to the instant disposition. According to the evidence No. 1, the payment period of the instant disposition may be acknowledged as of September 30, 2015, and it is evident that five years have not elapsed since it was the extinctive prescription period of the collection right. Accordingly, this part of the Plaintiff’s assertion also does not appear to have any motive.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.