Whether the administrative appeal prior to the filing of a lawsuit must be subject to the administrative appeal

It is essential to pass through an administrative appeal before filing an administrative litigation not falling under Article 18 (3) of the Administrative Litigation Act.

Article 52 (2) of the Framework Act on National Taxes;

2012Gudan28745 Revocation of Disposition of Imposing capital gains tax

The New Z except 19

Y Head of tax office and 4

June 24, 2015

August 21, 2015

1. All of the instant lawsuits are dismissed.

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

Cheong-gu Office

The primary claim: Defendant ○○ director of the tax office 】 ¡¿ (Article 209 】 The date 】 Transfer income tax for 209 】 ¡¿ the date 】 and the head of the tax office 】 revoke the disposition of imposition of the Council

Preliminary request: The director of the tax office having jurisdiction over the defendant ○○○ head of the tax office shall cancel the transfer income tax ¡¿ ¡¿ ¡¿ the additional tax for insincere payment 】

1. On the lawsuit of the plaintiff ○○○

When an administrative disposition is revoked, the disposition becomes null and void due to the revocation, and no longer exists, and a lawsuit seeking revocation against non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2004Du5317, Sept. 28, 2006).

However, the fact that Defendant ○○○ Tax Office revokes ex officio the disposition imposing capital gains tax stated in the purport of the claim against the Plaintiff is apparent in the record. As such, Defendant ○○ Tax Office seeking revocation of the disposition that does not exist, making it inappropriate for the Plaintiff

2. On the lawsuit of the plaintiff, the plaintiff et al.

국세기본법 제56조 제2하엥 따르면 국세기본법에 따른 처분으로서 위법한 처분에 따른 행정소송은 행정소송법 제18조 제1항 본문, 제2항 및 제3항에도 불구하고 국세기본법에 따른 심사청구 또는 심판청구와 그에 따른 결정을 거치지 아니하면 제기할 수 없다.

In this case, the fact that the Plaintiff filed the instant lawsuit without undergoing a request for examination or a request for judgment is apparent in the record, and thus, the Plaintiff’s lawsuit is unlawful.

Article 18 of the Administrative Litigation Act provides that an administrative appeal dismissal ruling has already been consistently made with respect to a number of cases of the same kind as this case that the plaintiffs raised by the Tax Tribunal, etc., and that it is unreasonable to force the plaintiffs to make the same procedures with intent in light of the legislative intent of Article 18 of the Administrative Litigation Act. However, Article 56(2) of the Framework Act on National Taxes excludes the application of Article 18(3) of the Administrative Litigation Act, and it does not seem harsh to follow the procedure of the previous trial (see, e.g., Supreme Court Decision 2007Du28517, May 28, 2009).

A. ○ Media Co., Ltd. (hereinafter “○ Media”) is a company that runs a general book and textbook publishing business on January 15, 1990.

B. On November 15, 2004, ○○○, who served as the representative director of the non-party company, transferred 60,000 shares of the non-party company owned by himself (hereinafter “instant shares”) to the officers and employees of the non-party company including the plaintiffs, and completed the transfer of ownership.

C. The Defendants: (a) applied Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) on the grounds that the Plaintiffs received title trust of the shares at issue from the ○○○, the actual owner of the non-party company; (b) determined and notified gift tax to the Plaintiffs as shown in the separate sheet No. 2 (hereinafter referred to as the “instant disposition”).

D. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on April 20, 2015, but was dismissed on August 12, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 11, Eul evidence Nos. 1 and 11 (including additional numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs received title trust from the ○○○ ○○ ○○ boom, which is not a single individual, and the ○○ ○○○ boom is exempt from taxation on profit-making business in practice as a religious organization. Therefore, there is no room to acknowledge the purpose of tax avoidance. Moreover, the ○○ b○ b○ b○ b○ b○ b○ b○○ b○ b○ b○ b○ b○ b○ b○ b○ b○ b○ b○ b○ b○ b○ b○ cl3, which is a juristic person run by the ○○○ b○ b○ b○ b○○ b○ b○ cl

B. Relevant statutes

Attached Form 3 is as listed in the relevant statutes.

C. Determination

1) The title truster of the issue shares

The Defendants asserted that the title truster of the shares at issue is ○○○, but it is insufficient to recognize the above alleged facts solely on the basis of the statements in the Evidence Nos. 2 through 17, and 19 through 24. However, the Plaintiffs are the title truster of the shares at issue who is the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and the Defendants also added the same content through the preparatory document as of September 20, 2016. Therefore, if the foregoing disposition is allowed, the instant disposition based on Article 45-2(1) of

Therefore, the subject matter of a taxation disposition lawsuit is objective existence of the tax amount determined by the tax authority. As such, the tax authority may submit new data that can support the legitimacy of the tax base or tax amount recognized in the relevant disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, and it does not necessarily mean that the tax authority can determine the legality of the disposition only by the data at the time of the disposition or only claim the reasons for the disposition at the time of the disposition (see, e.g., Supreme Court Decision 2009Du1617, Jan. 27, 2011).

According to the background of the above disposition, the reason for the disposition added in ancillary to the original reason for the disposition in this case is merely different from the legal evaluation of whether the actual ownership of the shares in question is deemed as ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

2) Whether there was no purpose of tax avoidance

As long as the fact of title trust is acknowledged, the claimant has the burden of proving that there was no purpose of tax avoidance. The nominal owner who bears the burden of proving the burden of proof has a clear objective of tax avoidance to the extent that there was no objective of tax avoidance in the title trust, and that there was no tax avoidance in the future at the time of the title trust or in the future, it shall be proved to the extent that the ordinary person is not doubtful, based on objective and correct evidence (see, e.g., Supreme Court Decision 2007Du17175, Sept. 8, 2011).

On the other hand, Article 3(1) and (2) of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006) provides that a non-profit domestic corporation shall impose corporate tax on income earned from profit-making business. Each statement in Gap evidence Nos. 4 and 22 (including the serial number) is insufficient to recognize that there was a non-taxation practice for the non-profit domestic corporation to permanently exempt the above corporate tax, etc. from the above corporate tax to a religious organization. Rather, according to the evidence No. 18 of the non-party company’s 2003 business year, according to the non-party company’s 2003 business year’s 200 billion won, the shares issued by the non-party company or its affiliated company (excluding some affiliated company held shares in the name of 0000 billion won) were in a title trust state, and thus, the issue at 000 ○○ Association, which is an issue at issue, can not be seen as the application of the former Local Tax Act.

3. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.