Transfer 2014-0050 (21 March 2014)

Even if the transfer income tax was imposed on the title trustee on the registry, it is not a serious and clear defect.

Since the Plaintiff filed a request for review after the lapse of 90 days, it is unlawful in accordance with Article 56 (2) of the Framework Act on National Taxes, and even if a taxation is imposed on a person who is merely a title trustee on the registry, it does not constitute a serious and apparent defect, and thus,

Article 56 of the Framework Act on National Taxes concerning other Acts

2014Gudan262 Revocation of Disposition of Imposing capital gains tax

Ma-○

○ Head of tax office

April 25, 2014

May 16, 2014

1. The main part of the lawsuit in this case shall be dismissed.

2. The plaintiff's conjunctive claim is dismissed.

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

On February 7, 2012, the Defendant revoked the disposition of imposition of ○○○○○ (including additional tax) for the Plaintiff on February 7, 2012, and confirmed that the said disposition is null and void in preliminary case.

1. Details of the disposition;

A. On February 7, 2012, the Defendant imposed on the Plaintiff a disposition of imposition of ○○○○○○ (including additional taxes) of capital gains tax in 2010 (hereinafter “instant disposition”). A notice of tax payment was served on the Plaintiff on February 14, 2012.

B. On March 6, 2014, the Plaintiff filed a request for examination of the instant disposition with the Commissioner of the National Tax Service, and the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on March 21, 2014 on the grounds that the request period expires.

[Ground of recognition] Facts without dispute, Gap 3, 4 evidence, Eul 1-1, 2-2, the purport of the whole pleadings

2. Whether the part concerning the primary claim among the lawsuit of this case is legitimate

Article 56 (2) of the Framework Act on National Taxes provides that "an administrative litigation against an illegal disposition prescribed in Article 55 shall not be filed without going through a request for examination or adjudgment and a decision thereon pursuant to this Act, notwithstanding the main sentence of Article 18 (1), Article 18 (2) and (3) of the Administrative Litigation Act, and a request for examination filed after the lapse of the deadline for request shall not constitute "request for examination pursuant to this Act" under the above provision. As seen earlier, the plaintiff filed a request for examination after the lapse of 90 days (Article 61 (1) of the Framework Act on National Taxes) from the deadline for request. As such, the main claim in the lawsuit in

3. Whether the disposition in this case is invalid (the part on preliminary claim)

A. The plaintiff's assertion

The Plaintiff is merely the nominal owner of real estate subject to taxation, and the actual owner is the same living together with the Plaintiff. The instant disposition is null and void against the principle of substantial taxation as prescribed by Article 14 of the Framework Act on National Taxes.

B. Determination

Even if a person subject to imposition of capital gains tax is only a title trustee, not a real owner of the transferred land, but also a title trustee, the title of ownership on the registry at the time of the transfer was made in the future of the title trustee, and the registration was not registered in the title trust relationship, barring any special circumstance, the tax authority, which is merely a third party, has no choice but to believe the registration of ownership transfer on the above land and accordingly make a tax disposition accordingly. Therefore, even if the said tax disposition imposed capital gains tax on a person who is only a title trustee on the registry, such defect cannot be deemed as serious and obvious, and thus, the argument that the said tax disposition is null and void is without merit (see Supreme Court Decision 97Nu13627, Nov. 28,

4. Conclusion

Thus, the part of the main claim among the lawsuit of this case is unlawful and thus it is dismissed. The plaintiff is dismissed.

The preliminary claim is dismissed as it is without merit, and it is so decided as per Disposition.