National High Court Decision 2005Du2019 ( August 17, 2005)

Since it is illegal after the time limit for filing a lawsuit has expired, it shall be dismissed.

Any plaintiff's lawsuit that is filed 90 days after the decision on the appeal is notified shall be dismissed as it is illegal after the period for filing the lawsuit expires.

2010Gudan25964 Revocation of imposition of capital gains tax

IsaA

○ Head of tax office

April 27, 2011

May 25, 2011

1. All the lawsuits of the Plaintiff (Appointed) and the Appointed shall be dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The primary purport of the claim is to determine that the amount of capital gains tax of the plaintiff (appointed party, hereinafter referred to as "the plaintiff") is larger than the amount of capital gains tax of 0A and thus constitutes an unfair act under Article 101 (2) of the Income Tax Act, and to revoke the notice of KRW 26,716,160 of the capital gains tax of 204 (which seems to be a clerical error in the year 2003) additionally imposed on the plaintiff on October 16, 2004.

1) Preliminary claim: He/she shall correct a decision of capital gains tax, gift tax and the plaintiff's capital gains tax decision decision by 00 A, which the defendant imposed on the plaintiff on October 16, 2004. He/she shall revoke notice of KRW 226,716,160 of capital gains tax belonging to the year 2004.

2. Preliminary Claim: The Defendant’s notice of KRW 226,716,160, which was imposed on the Plaintiff on October 16, 2004 is revoked.

1. Basic facts

A. On July 22, 2002, the Plaintiff purchased ○○○○○-dong 467 ○○○-dong 467 ○○-dong 5304 (hereinafter “the apartment of this case”). On December 17, 2002, the Plaintiff donated 1/2 shares of the apartment of this case to 0A on December 17, 2002, and on April 18, 2003, the registration of ownership transfer was completed in the name of 0A in the name of the Plaintiff and the selector.

B. On August 30, 2003, the Plaintiff and the SelectionB entered into a sales contract to sell the instant apartment to 2,800,000,000 won and received the remainder of the purchase price on November 20, 2003. On January 28, 2004, the Plaintiff paid 159,19,320 won to the Defendant as capital gains tax when filing a preliminary return on the tax base of capital gains tax on the transfer of the instant apartment, and the Selection A paid 109,985,340 won to the Defendant, respectively.

C. The defendant, after the plaintiff donated 1/2 shares of the right to sell the apartment of this case to Ba in a special relation with the plaintiff in order to reduce the transfer income tax unfairly, deemed that 00 on November 20, 2003, which is within three years from the date of donation, the plaintiff transferred 1/2 shares of the apartment of this case to 1/2 shares of the apartment of this case, and applied the unfair calculation denial provision under Article 101 (2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005), the plaintiff transferred all shares of the apartment of this case to Ba on October 12, 2004, the defendant revoked the disposition of this case including 10,885,350 won for transfer of 1/2 shares of the apartment of this case to 1/300 (including 109,985,340 won + the additional tax on transfer of the apartment of this case to 2016 won.

D. On May 16, 2005, the Plaintiff filed an appeal against the instant disposition with the National Tax Tribunal on May 16, 2005, and the National Tax Tribunal dismissed the Plaintiff’s appeal on August 17, 2005. The decision was notified to the Plaintiff on August 22, 2005.

[Ground of recognition] Facts without dispute Gap's evidence Nos. 1, 4 through 8 (including virtual number), Eul's evidence No. 1, the purport of the whole pleadings

2. Determination on the legitimacy of a lawsuit

A. Whether the plaintiff's lawsuit is legitimate

The plaintiff's primary claim and the preliminary claim are all lawsuits seeking the cancellation of the disposition of this case (the main claim and the preliminary claim cannot be deemed to be a separate claim). Accordingly, the lawsuit seeking the cancellation of the disposition of national taxes such as income tax cannot be brought without going through the request for examination or adjudgment under the Framework Act on National Taxes and the decision thereof, and the lawsuit for cancellation of the disposition of national taxes such as income tax shall be brought within 90 days after the notification of the decision on the request for examination or adjudgment (Article 56 (2) and (3) of the Framework Act on National Taxes). The lawsuit filed on November 26, 2010 after the lapse of 90 days from the notification date of the decision on the request for adjudication recognized earlier is unlawful since the lawsuit filed on November 2

B. Whether the action by the Appointor was lawful

In accordance with the facts established above, the SelectionA is not the other party to the disposition of this case, and there is no evidence to prove that the legally protected interests of the SelectionA were infringed on due to the disposition of this case, so the Selection does not have standing to sue to seek cancellation of the disposition of this case, and the lawsuit of the Selection A is unlawful.

3. Conclusion

Therefore, the lawsuits of the plaintiff and the Appointor are unlawful and all dismissed. It is so decided as per Disposition by the court below.