Supreme Court-2017-Du-73068 ( October 15, 2018)

A taxpayer who has filed a written report of exclusion from adding up the attached tax may file an ordinary claim for rectification.

A taxpayer who submitted a report of exclusion by the statutory due date of return stipulated in the former Gross Real Estate Tax Act without filing the report of exclusion, and after the imposition of the comprehensive real estate tax, can file an ordinary request for correction under the main sentence of Article 45-2(1) of the former Framework Act on National Taxes, just as the taxpayer who returned

Article 45-2 (Request for Correction, etc.)

2018Nu51951 Revocation of revocation of request for rectification

AAA Corporation

a) the Director of the Tax Office

September 18, 2018

November 6, 2018

1. The defendant's appeal is dismissed.

2. The defendant bears the total costs of the lawsuit after the filing of the appeal.

1. Purport of claim

On December 21, 2015, the Defendant’s revocation of the rejection of the Defendant’s request for correction against the Plaintiff on December 21, 2012, wwwwon for Comprehensive Real Estate Holding Tax, xx members of Special Rural Development Tax, yyy members of Comprehensive Real Estate Holding Tax in 2013, and zzz members of Special Rural Development

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Related statutes;

In Part 12 of the judgment of the first instance court, "The Comprehensive Real Estate Tax Act" is "the former Comprehensive Real Estate Tax Act (amended by Act No. 12153, Jan. 1, 2014)". Part 18 of the "The Framework Act on Taxation" is stipulated as "the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015).

Article 21 (Provision of Taxation Data)

(1) The head of a Si/Gun shall submit the data on assessment of property tax on a house among the data on assessment of property tax for the relevant year under the Local Tax Act to the Minister of Land, Infrastructure and Transport by July 31, and the data on assessment of property tax on a land by September 30: Provided, That the head of a Si/Gun shall submit the data on assessment to the Minister of Land, Infrastructure and Transport on a half-yearly basis within ten days from the date on which the relevant half-yearly period ends, when any ground for change in the amount of

(2) The Minister of Land, Infrastructure and Transport shall investigate taxpayers of comprehensive real estate holding tax on housing prescribed in Article 7 and compute the tax base and amount for each taxpayer, and notify the Commissioner of the National Tax Service thereof by August 31 each year,

(3) The Minister of Land, Infrastructure and Transport shall investigate taxpayers of comprehensive real estate holding tax on land prescribed in Article 12 and compute the tax base and amount of tax for each taxpayer, and notify the Commissioner of the National Tax Service thereof by October 15 of each year

(5) The Minister of Land, Infrastructure and Transport shall notify the Commissioner of the National Tax Service of property tax imposition data received from the heads of Sis/Guns under paragraph (1) within ten days from the date prescribed in paragraph (1

3. The parties' assertion

As such, the Plaintiff filed a report on the exclusion of summing-up under the Comprehensive Real Estate Tax Act on the paper tax, etc. for the year 2012 and year 2013, which may substantially be the same as having filed a tax base return under the Framework Act on National Taxes. Thus, the instant claim for rectification constitutes a claim for rectification under Article 45-2(1) of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015; hereinafter the same shall apply). Accordingly, the Defendant asserts that the Plaintiff filed a report on exclusion of summing-up under the Comprehensive Real Estate Tax Act does not constitute “person who filed a tax base return under Article 45-2(1) of the former Framework Act on National Taxes by the statutory

Article 45-2(1) proviso to Article 45-2(1) of the Framework Act on National Taxes should have received a request for correction within 90 days from the date of receipt of the notice of imposition of the attached tax, etc. for the year 2012 and the year 2013, but the instant request for correction was filed on November 2, 2015, past 90 days from the date of receipt of the notice of imposition of the attached tax, etc. for the year 2012 and the year 2013.

4. Determination

(a) The main sentence of Article 45-2(1) of the former Framework Act on National Taxes provides, “Any person who has filed a return of tax base by the statutory due date of return may file a request with the head of the competent tax office within five years after the statutory due date of return elapses for the determination or correction of the tax base and amount of national

On the other hand, the Gross Real Estate Tax Act enacted on January 5, 2005, for the purpose of enhancing equity in tax burden on possession of real estate by imposing comprehensive real estate holding tax on a person holding high-amount real estate and stabilizing the price of real estate, stipulates that the first comprehensive real estate holding tax is a national tax by which a person liable for tax payment should report and pay the tax base and tax amount to the head of the competent tax office from December 1 to December 15 of the pertinent year (Article 16(1) and (2) of the former Act).

However, the Comprehensive Real Estate Tax Act amended on January 11, 2007 stipulated that the amount of the comprehensive real estate holding tax shall, in principle, be determined by the head of the competent district tax office and the amount of the comprehensive real estate holding tax shall be imposed and collected (Article 16(1) of the above amended Act) from December 1 to December 15 of the pertinent year, or that when the taxpayer intends to pay the comprehensive real estate holding tax by the method of return and payment, the tax base and tax amount of the comprehensive real estate holding tax shall be determined by the selective return and payment method deemed not to have existed if the taxpayer files a return to the head of the competent tax office from December 1 to December 15 of the pertinent year (Article 16(

Accordingly, Article 21 of the former Gross Real Estate Tax Act (amended by Act No. 12153, Jan. 1, 2014; hereinafter the same) imposes each obligation on the head of a Si/Gun to submit data on imposition of property tax on a house to the Minister of Land, Infrastructure and Transport by July 31, and on the data on imposition of property tax on land by September 30, the Minister of Land, Infrastructure and Transport by investigating taxpayers of comprehensive real estate holding tax on housing and land by calculating their tax base and tax amount for each taxpayer, by August 31 of each year for housing portion, and by October 15 of each year for land portion, by the Commissioner of the National Tax Service by October 31 of each year (Article 2 and 3).

In addition, the former Gross Real Estate Tax Act recognizes the housing that is not included in the subject of the aggregate taxation of the comprehensive real estate holding tax (hereinafter referred to as the "housing subject to the exclusion of aggregate taxation") among the housing owned by the taxpayer and imposes an obligation on the taxpayer holding the housing subject to the exclusion of aggregate taxation to report the status of holding the relevant housing (hereinafter referred to as the "report on exclusion of aggregate taxation") from September 16 to September 30 of the relevant year (Article 8(3).

As such, a taxpayer’s report of exclusion is necessarily necessary for the tax authorities to impose a legitimate amount of comprehensive real estate holding tax. If such report is submitted, the tax authorities can calculate the tax base of comprehensive real estate holding tax and the amount of tax only by reflecting the details of the report in the taxation data, etc. already provided by the Minister of Land, Infrastructure and Transport. Accordingly, if no objection is raised to comprehensive real estate holding tax imposed thereon, the taxpayer may pay the same as it is, and the taxpayer may pay the comprehensive real estate holding tax by means of return and payment. As such, in the case of comprehensive real estate holding tax,

If the tax authorities make it possible to calculate the amount of tax to be paid on the basis of the contents of the report, the taxation data provided by the market, etc., unless there are special circumstances.

In light of the developments leading up to the enactment and amendment of the Comprehensive Real Estate Tax Act and the structure and details of the relevant regulations, it is reasonable to view that a taxpayer who submitted a report of exclusion of aggregate by the statutory due date of return stipulated in Article 8(3) of the former Comprehensive Real Estate Tax Act, without filing a report of exclusion of aggregate, can file a request for correction of ordinary tax amount under the main sentence of Article 45-2(1) of the former Framework Act on National Taxes, just as a taxpayer who filed a return of comprehensive real estate holding tax

B. Comprehensively taking account of the overall purport of the arguments in evidence Nos. 4 through 6, Nos. 3 and 4, the Plaintiff filed a report of exclusion through the preparation of the report of comprehensive real estate holding tax (CRAX-C) by each National Tax Service around September 28, 2012 in relation to the final tax for the year 2012 and the final tax for the year 2013, and around September 30, 2013 in relation to the final tax for the attached tax for the year 2012. The Defendant asserted that the Plaintiff’s request for exclusion was made based on the Plaintiff’s report of exclusion, and that the final tax for the year 2012 and the final tax for the year 2013 was paid by the Plaintiff on Nov. 21, 2012, and that the subsequent disposition was made on Nov. 26, 2013. The Defendant asserted that the subsequent disposition was made on the ground that the Plaintiff’s request for correction for the lapse of 2013 years and the year 2010.

Examining these facts in light of the aforementioned provisions and legal principles, as to each comprehensive real estate holding tax for the year 2012 and the year 2013, the Plaintiff filed a report of exclusion by the statutory due date of return stipulated under Article 8(3) of the former Comprehensive Real Estate Holding Tax Act and paid without any objection to the comprehensive real estate holding tax based on the tax payment notice reflecting the report of exclusion. As such, the same tax amount is returned and paid without filing a return without filing a report of exclusion. As to the specific tax, etc. for the year 2012 under the main sentence of Article 45-2(1) of the former Framework Act on National Taxes, the Plaintiff may file a request for correction by no later than September 30, 2017, which was within five years from September 30, 2012, the statutory due date of return, and the specific tax for the year 2013, which was within five years from September 30, 2013, which is the statutory due date of return.

Therefore, the Defendant’s disposition rejecting the instant claim for correction on November 2, 2015, on the ground that the ordinary period for filing the claim for correction was expired (In addition, as long as the instant claim for correction is deemed to fall under an ordinary claim for correction under the main sentence of Article 45-2(1) of the former Framework Act on National Taxes, there is no room to apply the proviso of Article 45-2(1) of the former Framework Act on National Taxes. Therefore, the Defendant’s assertion that the Plaintiff should have filed the claim for correction within 90 days under the said proviso is groundless

5. Conclusion

Thus, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.