Seocho 2012west 1177 (Law No. 13, 2012)

Where the compensation for expropriation has been deposited absolutely, the date when the judgment of the court to confirm the claim for payment of deposit money becomes final and conclusive.

In light of the fact that the Korea Land and Housing Corporation made an absolute and impossible deposit on the ground that the real right holder cannot be identified to receive the land expropriation compensation, and that it can be seen that the transfer time is the date when the lawsuit to confirm the right to claim payment of deposit money becomes final and conclusive so that it can be withdrawn as the right holder to the deposit money.

2012 old-gu 14241 Disposition rejecting capital gains tax rectification

LAA et al.

Head of Seodaemun Tax Office et al.

November 14, 2012

January 23, 2013

1. Each disposition rejecting a request for correction of capital gains tax on each date listed in the separate sheet No. 1 as stated by the Defendants against the Plaintiffs shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiffs are owners (each of the plaintiffs' shares 1/3) of the O00 3,808 m2 (hereinafter referred to as "the land in this case") in the Gyeonggi-si, Gyeonggi-do. The land in this case was used by the Korea Land and Housing Corporation (the date of adjudication of expropriation, August 4, 2010, and August 16, 2010 on the date of registration of ownership transfer).

B. On July 29, 2010, the Korea Land and Housing Corporation deposited the expropriation compensation on the ground that the project operator could not be aware of the person who is entitled to the compensation without negligence because the maximumA, the lowest BB, and the leastCC does not reside in the O00 in the Gyeonggi-gun, Gyeonggi-gun, the address on the registry and does not include resident registration numbers, as the nominal owner of the instant land.

C. On August 13, 2010, the Plaintiffs filed a lawsuit against the Korea Land and Housing Corporation as Suwon District Court 2010 Gohap 15175 to confirm the right to claim payment of deposit money and received a judgment on December 2, 2010 from the above court (hereinafter referred to as the “instant judgment”), and the instant judgment became final and conclusive on December 24, 2010.

D. On February 14, 2011, the Plaintiffs reported and paid the transfer income tax on the instant land to the Defendant, and on August 4, 2010, the date of transfer was deemed to be August 4, 2010, which was the date of the acceptance ruling, and the amount including the non-reported tax, was reported and paid the transfer income tax for the year 2010 (Plaintiff lowestA: 00 won, Plaintiff lowestB: 00 won, and Plaintiff LCC: 000 won).

E. After that, around April 25, 2011, the Plaintiffs were the Defendants, and the time of the transfer of the instant land was around December 24, 2010, when the deposit was received. Accordingly, the Plaintiffs filed a claim for correction to the effect that they would be entitled to tax credit for preliminary return, not subject to additional tax, and that they would be entitled to tax credit for preliminary return, and that they would be able to partially refund the said paid tax amount, and the Defendants rejected each of the above requests for correction (hereinafter “the initial disposition”).

F. After that, the plaintiffs filed a request for correction again on each date listed in the separate sheet No. 3, and the defendants rejected each of the above requests for correction (hereinafter referred to as "the disposition in this case") to the effect that since the transfer time of the land in this case had already been registered prior to the date of settlement of price, the transfer time of the land in this case cannot be seen as the date of receipt of deposit.

[Ground of Recognition] The facts without dispute, the entries in Gap evidence 1 to 10 (including household numbers), and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiffs' assertion

The Plaintiffs, and the time of the transfer of the instant land, are not the date of expropriation decision, but the time of the instant decision, which was December 24, 2010, and thereafter, the preliminary return was made on February 14, 201, which was within the time limit for preliminary return of capital gains tax (two months from the last day of the month to which the date of the first preliminary return of capital gains tax belongs). The instant disposition, which was otherwise reported, is not subject to additional tax for non-declaration under Article 108 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) and Article 16 of the Addenda, is not subject

(2) The defendants' assertion

The defendants, and the plaintiffs were requested to correct the disposition of this case around April 201, and had already received the original disposition of this case and filed a new request for correction without going through the appeal procedure as to it on each date listed in No. n. v. v. in the attached list No. v. in the attached list No. n., and then filed a lawsuit subject to the disposition of this case which rejected it, but it is not allowed to file a new request for correction after the lapse of the appeal period as to the initial disposition of this case, and as long as the appeal period as to the initial disposition of this case has expired, it is not allowed to file a request for correction again. Thus, the lawsuit of this case is unlawful, even if the plaintiffs are not allowed, since the transfer registration of ownership to the land of this case can be seen as the transfer period under the name of the Korea Land and Housing Corporation, it is subject to the radio

B. Determination

(1) Determination as to the defense prior to the merits

Where the tax base and amount entered in the tax base return exceeds those to be reported under tax-related Acts, a person who has filed the tax base return by the statutory deadline for filing the tax return may request the head of the competent tax office to determine or correct the tax base and amount of the national tax for which the initial return or revised return has been filed within three years after the statutory deadline for filing the tax return expires (see Article 45-2 (1) 1 of the Framework Act on National Taxes). In addition, a rejection disposition is established by an administrative agency’s declaration of rejection against a citizen’s application for disposition, and where it is clearly stated that the rejection has been rejected again

The period of time is under way based on each disposition, and the period of litigation for the previous disposition has expired, and thereafter, no administrative litigation cannot be filed against the subsequent rejection disposition (Supreme Court Decisions 92Nu7542 delivered on December 8, 1992, 96Nu15251 delivered on March 13, 198, and 200Du6084 delivered on March 29, 2002, etc.). In this case, even if a request for correction for health expenses and transfer income tax is rejected once when the request for correction is filed, the request for correction can be filed again, and if there is a rejection disposition against the request for correction, the request for rejection can be filed again, and the plaintiffs are not subject to the initial disposition of this case within the period of request for correction, but subject to the appeal of this case, which is the rejection disposition, and the lawsuit of this case is legitimate, and the defendants' assertion in this part of the other premise is without merit.

(2) Judgment on the merits

Article 39 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009, hereinafter the same) provides that the year to which the total income amount of a resident belongs shall be the year to which the date when the total income amount becomes final and conclusive, and this provision shall apply mutatis mutandis to capital gains tax pursuant to Article 118 of the former Income Tax Act. In addition, Article 162 (1) of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010) provides that when calculating gains on transfer of assets, the transfer time of the relevant assets shall be the date when the price of the relevant assets is settled, except in the following cases. In light of the contents and legislative intent of the above provisions, the transfer time of the above provisions is considerably different from that of the plaintiffs, and it is reasonable to determine that the transfer time of the above assets is not more than 20 years, but more than 20 years, and that it can be reasonably determined by the Supreme Court's 20101.

C. Sub-committee

Therefore, the transfer time of the instant land is around December 24, 2010, and the Plaintiffs made a preliminary return of transfer income tax on February 14, 201, which is the date of the preliminary return of transfer income tax from the Plaintiffs. This is not the subject of the preliminary tax return but the subject of the tax credit for preliminary tax return, and the instant disposition that was otherwise reported is unlawful.

3. Conclusion

Then, the plaintiffs' claims of this case shall be accepted for each reason, and they shall be decided in the same manner as the disposition.