If the tax authority erroneously interpreted the legal principles and took an administrative disposition, it is not invalid but subject to cancellation.

In a case where there is room for dispute over the interpretation of the legal relations or factual relations because the legal principles that the provisions of the law are not applicable clearly revealed, even if an administrative disposition was taken by a wrong interpretation by the administrative agency, it is merely a mistake of the fact of the disposition requirements, and it cannot be said that the defect is obvious

2015 old-gu 8636 Nullification of a disposition imposing capital gains tax

Ansan ○

○ Head of tax office

October 14, 2015

November 13, 2015

1. The plaintiff's claim is dismissed.

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

On May 2, 2012, 2012, the defendant of the Gu office's disposition of KRW 00,000,000 for the transfer income tax on the plaintiff (any of the 2006 claims stated in the complaint appears to be a clerical error) is invalid.

1. Details of the disposition;

A. On April 12, 1994, the Plaintiff acquired ○○○○○○○-dong ○○○○○○○-dong ○○○○○○○○○○○-dong hereinafter “instant previous house”), but the instant previous house was reconstructed, and acquired ○○○○○ apartment 00 00 dong 00 on April 24, 2003 (hereinafter “instant newly-built house”).

B. The Plaintiff transferred the newly-built house of this case on June 9, 2006. On the ground that it was transferred within five years from the date of acquiring the previous house of this case, the Plaintiff filed a report on capital gains tax for 2006 by making the entire amount of capital gains tax reduced and exempted pursuant to Article 99-3(1) of the former Restriction of Special Taxation Act (wholly amended by Act No. 8146, Dec. 30, 2006; hereinafter the same shall apply). However, on May 2, 2012, the Defendant deemed that the transfer income accrued from the date of acquisition of the previous house of this case to the date of acquisition of the newly-built house of this case is not the amount deducted from the income subject to income subject to capital gains tax, and accordingly, issued a decision to impose capital gains tax of KRW 00,000,000 (including additional tax) for the year of 206 (hereinafter referred to as “instant disposition”). D. The Plaintiff dissatisfied with the instant disposition and filed a request for adjudication on March 15, 2013.

[Reasons for Recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 and 2 evidence, and the purport of the whole pleadings;

A. The plaintiff's assertion

According to Article 99-3(1) of the former Restriction of Special Taxation Act, although the total amount of transfer income tax is reduced or exempted in the case of transfer within five years from the acquisition date of newly-built house, the Defendant issued the instant disposition by mistake in interpreting Article 99-3(1) of the former Restriction of Special Taxation Act.

B. Determination

In order to become null and void a defective administrative disposition, it must be objectively obvious that the defect has violated the former part of the Acts and subordinate statutes, and it is necessary to reasonably consider the purpose, meaning, functions, etc. of the relevant Acts and subordinate statutes as well as the unique characteristics of the specific case. If an administrative agency takes an administrative disposition by applying certain provisions to certain legal relations or factual relations, it is clearly stated that the legal principles governing the applicable provisions of the Acts are unclear, and thus, if an administrative agency takes the disposition by applying the said provisions within the period of 10 years from the date of acquisition of the newly-built house, it is obvious that the defect is grave and obvious. However, if there is room for dispute over the interpretation of the former Act because the legal principles governing the transfer of the newly-built house cannot be applied to its legal relations or factual relations, it is obvious that the newly-built house was transferred within the period of 5 years from the date of acquisition by mistake of the previous newly-built house's income from its transfer, and thus its defect is not clear (see Supreme Court Decision 202Da68485, Oct. 15, 20004).

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.