Cho High Court Decision 2005Du2019 ( October 17, 2005)

was filed after the expiration of the period for filing a lawsuit;

The appeal is dismissed because it is unlawful to have been filed after the period of filing the appeal has expired from the date of notice of the decision on the appeal, and since there is no evidence to prove that the legal interests of the designated person were infringed due to the disposition, the appeal is not proper

Article 56 of the Framework Act on National Taxes

Seoul Administrative Court 2011Gudan28649 revocation of disposition to impose capital gains tax.

IsaA

Head of the District Tax Office

February 1, 2012

February 15, 2012

1. All lawsuits filed by the Plaintiff (Appointed Party) and the WhiteB shall be dismissed.

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

"Preliminary claim: The defendant determined that the amount of capital gains tax of the plaintiff (appointed party, hereinafter referred to as the "the plaintiff") is more than the amount equivalent to the gift tax of the sperm B, and thus constitutes an unfair act under Article 101 (2) of the Income Tax Act; on October 16, 2004, the imposition and notification of capital gains tax of 226,716,160 won, which is additionally imposed on the plaintiff on the plaintiff on October 16, 2003, shall be revoked; and on the preliminary claim, the defendant made a donation to 0B by the plaintiff pursuant to Article 97 (4) of the Income Tax Act, and the amount equivalent to the gift tax is equivalent to the plaintiff's gift tax, and the imposition, notification shall be revoked.

1. Basic facts

A. On July 22, 2002, the Plaintiff purchased OOO 000 OO 0000 (hereinafter “the apartment of this case”) from Gangnam-gu Seoul OOO 000 (hereinafter “the apartment of this case”). On December 17, 2002, the Plaintiff donated 1/2 shares of the instant apartment sales right to 0B to 00,000, and on April 18, 2003, the registration of ownership transfer was completed in the name of the Plaintiff and 00B.

B. On August 30, 2003, the Plaintiff and the WhiteB concluded a sales contract to sell the instant apartment for KRW 2,800,000,000, and received the remainder of the purchase price on November 28, 2003. On January 28, 2004, the Plaintiff paid KRW 159,199,320 as capital gains tax to the Defendant, while filing a preliminary return on the tax base of capital gains tax on the transfer of the instant apartment, and the SelectionB paid KRW 109,985,340 as capital gains tax to the Defendant.

C. On October 12, 2004, the Defendant: (a) donated 1/2 shares in the instant apartment sale right to 0B to the designated parties in a special relationship with the Plaintiff in order to reduce capital gains tax; and (b) deemed that the designated parties transferred 1/2 shares in the instant apartment on November 20, 2003, within three years from the date of donation; (c) applied the unfair calculation rules under Article 101(2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005), and deemed that the Plaintiff transferred all shares in the instant apartment; and (d) revoked the disposition on October 12, 2004 as to the transfer of 1/2 shares in the instant apartment sale right to 1/1085,350 won (including 109,985,340 + 90 percent of increase in capital gains tax; and (e) revoked the disposition on the transfer of 2016,2006 won (including additional tax on the transfer tax on 106.6.20

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, entries in Gap evidence 1 through 9 (including a natural disaster) and the purport of the whole pleadings

2. Determination on the legitimacy of a lawsuit

A. Whether the plaintiff's lawsuit is legitimate

All of the plaintiff's main claims and preliminary claims are lawsuits seeking the cancellation of the disposition of this case (the main claims and preliminary claims are judged together because they cannot be called a separate claim), and 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 seeking the 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 plaintiff's lawsuit filed on November 23, 201 after the lapse of 90 days from the notification date of the decision on the request for examination recognized above was

B. Whether the action by the AppointB is legitimate

In accordance with the above-mentioned private theory, 0B is not the other party to the disposition of this case, and there is no evidence to prove that 0B violated the legal interests protected by 0B due to the disposition of this case. Thus, 0B does not have standing to sue to seek cancellation of the disposition of this case, and 0BB's lawsuit is unlawful.

3. Conclusion

Therefore, the lawsuit of the plaintiff and the leB shall be dismissed in entirety as it is so decided as per Disposition by the court.