An appeal litigation without going through a prior trial procedure is illegal to be dismissed.

An appeal seeking revocation of a disposition under the Framework Act on National Taxes or other tax-related Acts is filed after going through the procedures for a request for examination or adjudgment as prescribed by the Framework Act on National Taxes. Therefore, an appeal litigation not going through such procedures is illegal without going through the procedures for a prior trial even if it

Article 55 of the Framework Act on National Taxes

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

2017Guhap20714 Revocation of Disposition of Imposing capital gains tax

Ma-○

○ Head of tax office

May 31, 2017

June 23, 2017

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 88,657,440 against the Plaintiff on October 5, 2016 is revoked.

1. Details of the disposition;

A. Transfer of the instant land and reporting of transfer income tax

1) On May 27, 1995, the Plaintiff acquired 2,084 square meters prior to ○○○○-dong, ○○○○-○○○, and 663 square meters prior to ○○-○○, hereinafter collectively referred to as “instant land”). On July 21, 2015, the Plaintiff transferred KRW 415,000,000 to ○○○.

2) In transferring the instant land, the Plaintiff filed a transfer income tax report with the content of full reduction or exemption of the tax amount in accordance with the reduction or exemption provisions under Article 69 of the Restriction of Special Taxation Act on the ground that the instant land is farmland of less than

B. The defendant's corrective disposition

According to the result of planning and inspection of ○○ regional tax office, the Defendant deemed the instant land as not farmland as of the date of transfer and denied reduction and exemption under Article 69 of the Restriction of Special Taxation Act, and on October 5, 2016, the Defendant issued a correction and notification of capital gains tax of 88,657,440 (including additional tax) for the Plaintiff in 2015 (hereinafter “instant disposition”).

C. The plaintiff's objection and dismissal decision

The Plaintiff filed an objection against the Defendant on November 3, 2016, but the Defendant dismissed the Plaintiff’s objection on December 21, 2016.

2. Determination on this safety defense

A. The defendant's assertion

The instant lawsuit is unlawful, since it did not go through the pre-trial procedure for a request for examination or adjudgment as prescribed in Article 56 of the Framework Act on National Taxes.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The main text of Article 18(1) of the Administrative Litigation Act provides that "an action for cancellation may be brought even without going through an administrative appeal against the disposition." The proviso provides that "no action for cancellation shall be brought without going through an administrative appeal against the disposition." Meanwhile, Article 56(2) of the Framework Act on National Taxes provides that "an administrative litigation against an illegal disposition provided for in Article 55 shall not be brought without going through an administrative appeal against the request for examination or adjudgment under this Act and a decision thereon, notwithstanding the main text of Article 18(1), Article 18(2) and Article 18(3) of the Administrative Litigation Act." In addition, Articles 61(1) and 68(1) of the same Act provide that "an action for cancellation shall be filed within 90 days from the date when the relevant disposition becomes known (if a notice of disposition is received, the date of receipt)" and Article 61(2) of the same Act provides that "in order to file an objection after receiving a notice of decision on the request for review, it shall apply mutatis mutandis."

In full view of the relevant provisions, an appeal seeking revocation of a disposition under the Framework Act on National Taxes or tax-related Acts is filed after going through the procedures for a request for examination or a request for adjudication as prescribed by the Framework Act on National Taxes. Therefore, an appeal litigation without going through such procedures shall be deemed unlawful, even if it has gone through the procedures for filing a

2) We examine the instant case.

Although the Plaintiff filed an objection with the Defendant, who is the disposition authority on November 3, 2016 and received a dismissal decision on December 21, 2016 of the same year, the Plaintiff did not complete all the procedures for the request for examination or adjudgment as prescribed by the Framework Act on National Taxes within the period for the request for examination and adjudgment. Thus, the Plaintiff’s lawsuit in this case ought to be dismissed on the grounds that it did

3. Conclusion

It is decided as per Disposition by the assent of all participating Justices to dismiss the instant lawsuit.