Seocho 2012west 4139 ( November 20, 2012)

The lawsuit of this case is unlawful because it was instituted without due process of the preceding trial.

Since the filing of an objection after 90 days from the date on which the notice of disposition was received does not go through a legitimate pre-trial procedure, it is illegal.

Article 55 of the Framework Act on National Taxes

2013Gudan50398 Disposition of revocation of imposition of capital gains tax, etc.

IsaA

Head of the District Tax Office

July 26, 2013

October 11, 2013

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The defendant's decision that the disposition of imposition of OOO(including additional tax) of capital gains tax belonging to the year 2006 against the plaintiff on April 4, 2012 is revoked.

1. Details of the disposition;

A. On September 25, 1993, the Plaintiff acquired OO-dong OO-dong 91-5 B high-rise apartment 302 and 507 (hereinafter referred to as the “former Housing”). When the reconstruction project was conducted with respect to the said housing, the Plaintiff sold 91-5 CCC 108 Dong 2103 (hereinafter referred to as “instant newly-built house”) and completed the registration of ownership transfer on December 29, 201.

B. The Plaintiff sold the newly-built house of this case to the OOE on May 4, 2006, and Article 99-3 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) on July 31, 2006

In applying paragraph 1, a preliminary return of tax base for capital gains tax was made by claiming that capital gains tax is exempted as income accruing from transfer within five years from the date of acquisition, and applying 100% reduction or exemption to the total gains.

C. On April 4, 2012, the Defendant issued the instant disposition imposing an OO of capital gains tax (including additional OO of capital gains tax) on the Plaintiff on April 4, 2012, on the following grounds: (a) the reduction or exemption of capital gains tax on the person acquiring newly-built house stipulated in Article 99-3 of the former Restriction of Special Taxation Act applies only to the gains accruing from the acquisition of newly-built house for five years after the acquisition of the newly-built house; (b)

D. On April 16, 2012, the Plaintiff served the instant disposition, and filed an objection with the director of the Seoul Regional Tax Office on July 30, 2012. However, on September 5, 2012, the Plaintiff was dismissed on the ground that the period for filing a lawsuit was elapsed, and the Plaintiff filed an appeal with the Tax Tribunal on September 10, 2012, but was dismissed on November 19, 2012.

Facts without any dispute arising in recognition, Gap, 10 evidence, Eul, 2, 3, 6, and 7 respectively, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

We first examine the defendant's main defense of safety.

According to Articles 55(1) and 56(2) of the Framework Act on National Taxes, where a person is dissatisfied with a disposition of tax imposition pursuant to the Framework Act on National Taxes, an administrative litigation may be instituted only through a request for examination or adjudgment under the same Act. In such cases, a request for examination or adjudgment shall be lawful, such as the obligation to comply with the request period, and where a request for examination or adjudgment is unlawful due to the lapse of the period, the administrative litigation shall also be deemed unlawful (see Supreme Court Decision 90Nu8091, Jun. 25, 1991).

In addition, pursuant to Articles 61(1) and (2), 66(1) and (6), and 68 of the Framework Act on National Taxes, an objection may be filed prior to a request for examination or adjudgment. In this case, an objection shall be filed within 90 days from the date the decision on the objection is notified, and a request for examination or adjudgment shall be filed within 90 days from the date the decision on the objection is notified, and where an objection is filed without going through a request for examination or adjudgment, the request for examination or adjudgment shall be filed within 90 days from the date the decision on the objection is notified. Meanwhile, where an objection is filed prior to the request for examination or adjudgment, the period for request for examination or adjudgment shall not be calculated as of the date the decision on the objection is notified, and even if the request for examination or adjudgment has been filed within 90 days from the date the

However, as seen earlier, the Plaintiff filed an objection on July 30, 2012 after the lapse of 90 days from April 16, 2012, which was the date on which the notice of the instant disposition was received, and thus, the said objection is unlawful. Therefore, even if the Plaintiff received a written notice of the decision on the objection on September 5, 2012 and filed a request for adjudication with the Tax Tribunal on September 10, 2012, the said request for adjudication is unlawful as it was filed in excess of the deadline for request.

Therefore, the defendant's defense that the lawsuit of this case is unlawful is justified, since it was brought without going through legitimate procedure of trial.

3. Conclusion

Therefore, the lawsuit of this case is dismissed as unlawful.