2013Divisions 4125 ( November 18, 2013)

A request for a trial to the Central Administrative Appeals Commission shall not be deemed to have undergone a prior trial on the matters decided to be dismissed after reaching the Tax Tribunal 90 days after the request.

Since a written request for a trial shall be deemed to have been filed at the time of submission to the head of the relevant tax office or the head of the relevant tax office, the commissioner of a regional tax office, the Commissioner of the National Tax Service, and the head of the Tax Tribunal, a request for a trial which arrives at the Tax Tribunal after the lapse of 90 days through

Articles 55 (1) and 56 (2) of the Framework Act on National Taxes

2014Guhap20238 Revocation of attachment disposition

LAA

K Director of the Korean Tax Office

April 29, 2014

May 27, 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 seizure disposition on BB life insurance (securities number: OOOOOO) against the plaintiff on June 20, 2013 is revoked.

1. Basic facts

A. The Plaintiff did not pay the capital gains tax (including additional OOO) accrued in 2009 by May 4, 201, which was due date for payment.

B. On June 20, 2013, in order to secure the claim for capital gains tax in arrears, the Defendant seized (hereinafter “instant disposition”). The instant disposition notice reached the Plaintiff on June 27, 2013, and (c) the Plaintiff submitted a written request for administrative appeal to the Central Administrative Appeals Commission on September 2, 2013 (hereinafter “instant request for adjudication”). The Central Administrative Appeals Commission transferred the said request for adjudication to the Director of the Tax Tribunal on October 7, 2013, and the said request for adjudication was received from the Director of the Tax Tribunal on October 14, 2013; and (d) the Director of the Tax Tribunal received a decision of dismissal from the Director of the Tax Tribunal on November 18, 2013 to the Director of the Tax Tribunal on the Plaintiff’s request for adjudication under Article 68(1)9 of the Framework Act on National Taxes and Article 68(1)5 of the same Act on the date the Plaintiff received the notification of the request for adjudication from the Director of the Tax Tribunal.

Facts without any dispute, Gap's 1, 2, 3, Eul's 1 and 2, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination as to the legitimacy of the instant lawsuit

A. The assertion

1) Plaintiff’s assertion

Although the instant insurance money constitutes prohibited property under Article 31 subparag. 13 of the National Tax Collection Act and Article 36(1) subparag. 1 of the Enforcement Decree of the same Act, the Defendant’s seizure of the total amount of the instant insurance money in violation of the statutes was unlawful.

2) Defendant’s main defense

A request for adjudgment against a disposition under tax-related Acts shall be filed with the head of the relevant tax office or the head of other tax office, the commissioner of a regional tax office, the Commissioner of the National Tax Service, or the Director of the Tax Tribunal, who is directly in charge of national tax affairs. However, the Plaintiff, who is dissatisfied with the disposition of this case, submitted a request for adjudgment to the Central Administrative Appeals Commission, and the request for adjudgment was sent to the Director of the Tax Tribunal after the lapse

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) We examine the Defendant’s main defense.

A) According to the relevant provisions of the Framework Act on National Taxes and the Enforcement Decree of the same Act, a written objection or a written request for examination shall be submitted to the head of the relevant tax office, the director of a regional tax office, or the Commissioner of the National Tax Service, who is directly in charge of the affairs concerning national taxes under the tax-related Acts. Thus, if it is submitted to other agencies, unless it is sent to the head of the relevant tax office, the director of a regional tax office, or the Commissioner of the National Tax Service other than the relevant head of the relevant tax office, or the head of the relevant tax office, within the lawful period for filing an objection or the period for requesting an examination (see

B) Articles 55(1) and 56(2) of the Framework Act on National Taxes provide that any administrative litigation seeking revocation of an illegal disposition among dispositions under tax-related Acts may not be filed without going through a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon. Article 68(1) of the Framework Act on National Taxes provides that an appeal shall be filed within 90 days from the date when the relevant disposition is known or when the disposition is notified, and Article 69(1) and (2) of the same Act provides that an appeal shall be filed with the Director of the Tax Tribunal via the head of the relevant tax office, and the relevant request for adjudication shall be deemed to have been filed with the Director of the Tax Tribunal when the relevant request for adjudication

C) We examine the instant case.

On June 20, 2013, the Defendant issued the instant disposition that seizes the total amount of the instant insurance proceeds pursuant to the National Tax Collection Act. The Plaintiff received the notice of the instant disposition to the Plaintiff on June 27, 2013, and the Plaintiff submitted a written appeal to the Central Administrative Appeals Commission on September 2, 2013, which is within 90 days from the Plaintiff. However, the Central Administrative Appeals Commission transferred the written appeal to the Director of the Tax Tribunal on October 7, 2013, and submitted the said written request to the Director of the Tax Tribunal on October 14, 2013.

According to the above facts of recognition, the instant request for adjudication was submitted to the Director of the Tax Tribunal on October 14, 2013, past 90 days from June 27, 2013, which was the date on which the Plaintiff received notice of the instant disposition, and thus, cannot be deemed to have been filed within the deadline for request. There is no evidence to acknowledge that the Plaintiff underwent the procedure of the prior trial, such as the request for examination, etc. on the instant disposition.

Therefore, the lawsuit in this case is unlawful because it does not meet the requirements for administrative appeal transfer under Article 56 (2) of the Framework Act on National Taxes

D) Therefore, the Defendant’s principal defense that the instant lawsuit is unlawful is justified.

2) On the other hand, the Plaintiff asserts that the instant disposition was made in violation of the statutory provisions prohibiting seizure and must be cancelled or cancelled as a matter of course, and thus, it can be seen to seek a declaration of invalidity of the instant disposition as to the Plaintiff’s assertion.

A) Article 31 subparag. 13 of the National Tax Collection Act and Article 36(1)3 of the Enforcement Decree of the same Act provide that an amount below the amount of KRW OO out of the refund for cancellation of a guaranteed insurance cannot be seized. The above provision is reasonable to interpret that even if the refund for cancellation exceeds the amount of KRW OO, it shall not be subject to seizure exceeding the total amount of KRW OO, but even in such a case, the amount below OOO won constitutes the property prohibited from seizure and may be seized only exceeding the amount above the above amount. In such a case where the above provision is violated against the provisions of the National Tax Collection Act or other related Acts and subordinate statutes, it constitutes a violation of the relevant

B) As to the instant case, the Defendant’s attachment of the total amount of the instant insurance proceeds, which is a refund for cancellation of the guaranteed insurance, and the fact that the Defendant seized the total amount of the instant insurance proceeds, even though it constitutes a property prohibited from seizure. Therefore, the part of the instant disposition, among the instant disposition, is in violation of the National Tax Collection Act and thus, is null and void.

C) However, even in a case where an administrative lawsuit seeking revocation is filed in the sense of declaring the invalidity of an administrative disposition as a matter of course, it shall meet the requirements for filing a lawsuit seeking revocation (see, e.g., Supreme Court en banc Decision 75Nu128, Feb. 24, 1976; Supreme Court Decision 92Nu11039, Mar. 12, 1993). Therefore, as long as the Plaintiff seeks revocation without seeking confirmation of invalidity of the disposition in this case in this case, the Plaintiff must meet the requirements for administrative appeals. However, as seen earlier, the lawsuit in this case is not in conformity with the requirements for filing a lawsuit, and the Plaintiff’s assertion on the merits is inappropriate without any need for acceptance.

3. Conclusion

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