Whether a lawsuit seeking the revocation of an administrative disposition shall undergo the pre-trial procedure

In the sense of declaring the invalidity of an administrative disposition, even in the case of an administrative litigation claiming the revocation, it shall meet the requirements for filing a suit, such as the previous trial procedure and compliance with the filing period.

Article 68 of the Framework Act on National Taxes

Article 18 of the Administrative Litigation Act

1. The instant lawsuit shall be dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 7,371,460 on January 1, 2004 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. On June 30, 200, the Plaintiff acquired ○○○○○○-dong ○○○○○○○-dong ○○○○○○○○-dong ○○○○○○ apartment ○○○○○-dong ○○○○○○ apartment ○○○-dong hereinafter referred to as the “instant apartment”) and transferred the instant apartment to ○○○○-dong ○○○-dong ○○○○○○○-dong on January 21, 2003 through the process of a voluntary auction on real estate, and did not file a preliminary return or a final return on the tax base of transfer income with the Defendant.

B. Accordingly, on January 1, 2004, the Defendant calculated the transfer value and acquisition value of the apartment of this case as the standard market price, and determined and notified the Plaintiff of the transfer income tax of KRW 7,371,460 for the year 2003 (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1

2. Whether the lawsuit is lawful;

A. The plaintiff's assertion

The plaintiff acquired the apartment of this case in 500,000 won, and transferred the apartment of this case in 406,806,940 won. Thus, according to the above actual transaction price, the plaintiff did not take any gains from the transfer of the apartment of this case, despite the fact that the defendant calculated gains from the transfer of the apartment of this case at the standard market price and the acquisition price of the apartment of this case, and disposed of this case based on this, the disposition of this case is null and void as the defect is significant and obvious.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

In the sense of declaring the invalidity of an administrative disposition, even in the case of an administrative litigation claiming the revocation, the previous trial procedure and the compliance with the period of filing a lawsuit shall meet the requirements for filing a revocation

This is (see Supreme Court Decision 90Nu6279 delivered on December 26, 1990).

However, in full view of the purport of the arguments in Gap evidence Nos. 1 and Eul evidence Nos. 5 and 9, the plaintiff can be recognized as having received a tax payment notice of the disposition of this case around January 14, 2004, and there is no counter-proof (In addition, according to each of the above evidence, the plaintiff was living in ○○○○○-dong ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on May 26, 200 to December 1, 204, and the defendant sent the above tax payment notice to the plaintiff on January 14, 204 by registered mail but it was found that the above tax payment notice was not returned to the defendant, and there is no counter-proof evidence to support that the above tax payment notice was served on the plaintiff on April 19, 2004.

Therefore, the lawsuit of this case is unlawful as it does not go through the previous trial procedure.

Furthermore, even in the case of calculating transfer margin based on the standard market price as in this case, the tax amount calculated based on it cannot exceed the scope of transfer margin based on the actual transaction price (see, e.g., Supreme Court Decision 96Nu860, Feb. 11, 1997). However, whether the amount of transfer income tax calculated based on the standard market price exceeds the scope of transfer margin based on the actual transaction price can only be determined after the year when the taxing authority conducts an accurate investigation of a factual relationship, and thus, it cannot be deemed that any defect is apparent. Thus, the taxation thereby cannot be deemed null and void as a matter of course. Accordingly, the Plaintiff’s claim in this case without any need to further examine whether transfer margin based on the actual transaction price occurred or not.

Judges Gambling---------

Related Acts and subordinate statutes

◯ 국세기본법 제8조서류의 송달

(1) Documents prescribed by this Act or other tax-related Acts shall be served on the domicile, temporary domicile, place of business or office (in the case of service by means of information and communications networks (hereinafter referred to as "electronic service"), referring to electronic mail address (where stored in national tax information and communications networks, referring to the place accessible by means of using an identification mark of the designated person); hereinafter referred to as "domicile or place of business") of the designated person (referring to the person designated as the recipient of the relevant documents; hereinafter the same

◯ 국세기본법 제10조서류송달의 방법

(1) Documents provided for in Article 8 shall be served by delivery, mail or electronic delivery.

(2) When it is intended to serve by mail documents related to notification, demand, disposition on default, or order issued by the Government under tax-related Acts, such documents shall be served by registered mail: Provided, That a tax payment notice for interim prepayment under Article 65 (1) of the Income Tax Act and a tax payment notice for collection for collection under Article 18 (2) of the Value-Added Tax Act that falls short of the amount prescribed by Presidential Decree may be served by regular mail (amended by Act No. 8139, Dec. 30, 2006).

◯ 국세기본법 제12조 송달의 효력발생

(1) Any document served under Article 8 shall take effect when it reaches the person to receive the document: Provided, That in the case of electronic service, such document shall be deemed to reach the person to receive the document when it is put to the electronic mail address designated by the person to receive the document (in the case of service by means of national tax information and communications networks,

◯ 국세기본법 제55조 불복

(1) Any person whose rights or interests are infringed upon by receiving an illegal or unreasonable disposition or by failing to receive a necessary disposition under this Act or other tax-related Acts, may request the revocation or modification of the disposition, or necessary disposition, after making a request for examination or adjudgment under the provisions

◯ 국세기본법 제56조 다른 법률과의 관계

(2) Notwithstanding the provisions of Article 18 (1) (main sentence), (2) and (3) of the Administrative Litigation Act, any administrative litigation against any illegal disposition prescribed in Article 55 shall not be instituted without going through a request for examination or adjudgment and a decision thereon under this Act (amended by Act No. 8139, Dec. 30, 2006).

◯ 국세기본법 제61조 청구기간

(1) A request for evaluation shall be filed within 90 days from the date (when a disposition notice is received, the date of its receipt) on which an applicant becomes aware of the relevant disposition.

◯ 국세기본법 제68조 청구기간

(1) Any request for adjudgment shall be filed within 90 days after the relevant disposition is known (when a notice of disposition is received, the date of its receipt).

◯ 행정소송법 제18조 행정심판과의 관계

(1) A litigation for cancellation may be instituted without going through an administrative appeal against a disposition pursuant to the provisions of Acts and subordinate statutes: Provided, That this shall not apply where other Acts prescribe that a litigation for cancellation may not be instituted without going through an administrative adjudication against the disposition.