The time limit for filing a lawsuit under the Framework Act on National Taxes shall be expired as an illegal lawsuit.

Although there is a dispute over the revocation of gift tax imposed on the capital increase due to the allocation by a third party, it is subject to dismissal due to procedural defects, even though the period of filing a lawsuit prescribed in the Framework Act on National Taxes expires.

Article 56 (2) of the Framework Act on National Taxes Article 56 (3) of the same Act

2013Guhap316 Revocation of Disposition of Imposition of Gift Tax

MaAA

The Director of the National Tax Service

December 18, 2013

February 12, 2014

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant’s imposition of OOO(including additional tax) of gift tax on October 10, 2007 against the Plaintiff on April 1, 201 shall be revoked.

1. Details of the disposition;

"BB Co., Ltd. (BB BB prior to the amendment: CCC; hereinafter referred to as BB) held a board of directors on August 17, 2007 and passed a resolution to pay 16,000,000 shares of registered common shares to the OOO members per share in a third party. On September 14, 2007, the board of directors held a resolution again on September 14, 2007, and conducted a resolution to change a certain number of new shares and its schedule, and then the Plaintiff paid 10,444 shares on the same day, and acquired 44,444 shares on the same day."

C. The Board of Audit and Inspection, on December 9, 2010, deemed that BB had issued capital increase in the number of shares to 32 persons including the Plaintiff, and notified the director of the tax office of the Namcheon National Tax Office of the imposition of gift tax by regarding the acquisition price of new shares and the appraisal price difference under the Inheritance Tax and Gift Tax Act as the donation of profits to the persons who received a allocation at low price," and (d) the director of the tax office of the Nam Incheon National Tax Office notified the Defendant of the same content through the acquisition of capital increase in the number of shares under the premise that the assessment value per share of the above shares calculated pursuant to Article 39(1)1(c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007) and Article 29(3)1(1) of the Enforcement Decree of the same Act is an OOO won.

E. According to the above notice, on April 1, 201, the Defendant imposed an OOO (including additional taxes) on the Plaintiff on October 10, 2007 (hereinafter “instant disposition”). “F. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 16, 201. The Tax Tribunal re-examineed whether the forfeited shares issued at the time of capital increase with new stocks issued on October 10, 207 falls under the allocation of securities under the Securities and Exchange Act, which was stipulated in BB’s Securities and Exchange Act, and subsequently corrected the tax base and tax amount in accordance with the result, and dismissed the remainder of the claim.

G. Accordingly, the head of the tax office having jurisdiction over the Republic of Korea (hereinafter “the notice of the result of the follow-up disposition in this case”) and on April 6, 2012, the Plaintiff’s relative Kim Sung-hee received it and sent it to the Plaintiff at that time.” On July 4, 2012, the Plaintiff filed a re-appeal with the Tax Tribunal on the same day, but was dismissed on October 18, 2012.

[Ground of recognition] Unsatisfy, Gap evidence 2 through 7, Eul evidence 1, 3, 4, 5 (including provisional number), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. Defendant’s defense prior to the merits

"A person who has been notified of a subsequent disposition following the review decision by the Tax Tribunal shall file an administrative litigation within 90 days from the date of receipt of the notice of the result of the subsequent disposition of this case, but the plaintiff filed the lawsuit of this case on January 18, 2013, which was 90 days from the time of receipt of the notice of the result of the subsequent disposition of this case, and thus, the lawsuit of this case is unlawful

A litigation seeking cancellation of a national tax disposition shall not be instituted without going through a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon, and shall be filed within 90 days from the date the decision on the request for examination or adjudgment was received (Article 56(2) and (3) of the Framework Act on National Taxes). Meanwhile, in cases where a reinvestigation decision was made in the form of a decision on the request for examination or adjudgment, it is reasonable to deem that the period of the request for examination, the period of the request for adjudgment, or the period of filing of the administrative litigation according to the decision on reinvestigation should be calculated from the date the applicant is notified of the subsequent disposition (referring to a subsequent disposition such as re-inspection of the matters pointed out in the relevant decision and correction of the tax base and tax amount or maintaining the initial disposition according to the results thereof) (see Supreme Court Decision 2007Du12514, Jun. 25, 2010). Accordingly, to bring a legitimate lawsuit complying with the period of filing

As seen earlier, the Plaintiff received the notification of the result of the follow-up disposition of the instant case around April 6, 2012. The fact that the Plaintiff filed the instant lawsuit on January 18, 2013, which is apparent in fact that the lapse of 90 days from the Plaintiff, is significant in this court, and thus, the instant lawsuit is deemed unlawful as it exceeds the period of filing the lawsuit.

"If there is a decision of re-audit, the plaintiff is compatible with a request for review, a trial, and an administrative litigation as a means of objection to it, and it is not necessarily required to take any remedy procedure. In fact, the latter Tax Tribunal dismissed the plaintiff's request for a trial after making a decision on the merits, and thus the period for filing a lawsuit is not excessive. However, the plaintiff is deemed to have completed the decision of the Tax Tribunal on the disposition of this case as a result of a subsequent disposition and a notification made by the Tax Tribunal. Therefore, the plaintiff who has undergone the above procedure should file an administrative suit, which is the next procedure within the prescribed period for filing a lawsuit. (2) The above argument that the tax Tribunal may again file an administrative appeal against the ruling and the same disposition or omission, if there is a decision on the request for a trial again, is against the provisions of Article 51 of the Administrative Appeals Act as applied mutatis mutandis under Article 56 (1) of the Framework Act on National Taxes, and thus, it cannot be accepted. (3) Even if the Tax Tribunal made a decision on an unlawful request for a trial, it cannot be accepted."

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