National High Court Decision 2004No1056 (204.06.07)

(2) If the time limit for filing a lawsuit is illegal;

It is obvious that the 90-day period of filing a lawsuit is elapsed upon the notice of the decision of national tax adjudication.

201Guest 14688. Revocation, etc. of decision of correction

XX

Head of the District Tax Office

September 7, 2011

September 28, 2011

1. All of the plaintiff's lawsuits of this case are dismissed.

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

The primary claim: With respect to the Plaintiff’s donation to ASEAN on the charge of 00 XXdong 000 000 east 182.20 m20 m2 (hereinafter “the apartment of this case”), the Defendant made a decision of correction in accordance with the capital gains tax decision, and revoked the disposition of imposition and notification on October 1, 2003 for the transfer income tax of 10,256,590 m203 for the Plaintiff without prior notification.

1. Preliminary Claim 1: The plaintiff actually transferred the apartment of this case to ASEAN on March 13, 2003 on the date on which the property was actually transferred for consideration. The defendant decided on April 24, 2003 that this case constitutes two houses per household, and the plaintiff imposed and notified the transfer income tax of 100,256,590 won belonging to the year 2003 on the plaintiff on October 1, 2003. The second preliminary Claim is revoked. With respect to the donation to ASEAN of the apartment of this case to ASEAN, the second Preliminary Claim is revoked on March 13, 2003, since the plaintiff entered into an agreement to assume the obligation between the creditor, donor and the third party to assume the obligation and the third party to assume the obligation, the defendant notified the plaintiff of the imposition of the transfer income tax of 10,256,590 won belonging to the year 203.

1. Basic facts

A. On April 24, 2003, the Plaintiff completed the registration of transfer of ownership with respect to the apartment of this case, which was owned by himself, due to donation to Lee, his children.

B. At the time of the registration of transfer of ownership, the Plaintiff held 00 OO-dong 000 O-dong, Gangnam-gu Seoul Metropolitan Government O-dong 000 O-dong 0000 and April 18, 2003, which completed the registration of transfer of ownership on December 13, 2002 other than the apartment of this case at the time of the above registration of transfer of ownership, and held 00 O-dong 00 (0)-1/2 shares.

C. On May 2003, the Plaintiff reported the tax base of transfer income regarding the transfer of the apartment of this case to the Defendant. On the ground that as of March 13, 2003, the Plaintiff’s transfer of the apartment of this case constitutes a transfer of one house for one household, which is exempt from taxation, on the ground that as of March 13, 2003, the donor and the beneficiary, assumed the duty of exempted debt regarding the secured debt (three loans) of the right to collateral security established on the apartment of this case (three loans), the Plaintiff reported and paid only 14,96,274 won as to the portion exceeding the standard amount of expensive house, which is the base amount

D. However, on April 24, 2003, the Defendant issued the instant disposition that additionally imposes capital gains tax on the Plaintiff on October 1, 2003 on the ground that the Plaintiff held each of the above OO0 (0) 000 dong and 000 - 1/2 dong 000 dong 000 dong 00 dong 000 dong 1/2, and thus is excluded from the application of non-taxation provisions for one household.

E. The Plaintiff filed a national tax inquiry with the National Tax Tribunal on the instant disposition, and the National Tax Tribunal dismissed the Plaintiff’s claim on June 16, 2004, and the Plaintiff was notified of the decision of dismissal at that time.

F. After that, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the instant disposition with the court 2004Gudan7002, but the judgment dismissing the Plaintiff’s claim was rendered on June 1, 2005, and thereafter, the appeal (Seoul High Court 2005Nu14419) and the final appeal (Supreme Court 2006Du5441) were all dismissed, and the judgment of the first instance court became final and conclusive on May 25, 2006.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5 (including paper numbers; hereinafter the same shall apply), Eul evidence No. 1, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

Inasmuch as the Plaintiff sought a judgment identical to the primary claim and the primary and secondary conjunctive claim, all of the lawsuits seeking cancellation of the disposition in this case, including the income tax, are lawsuits seeking for cancellation of the disposition in this case. Meanwhile, a suit seeking cancellation of the disposition in the form of national tax such as income tax cannot be brought without going through an examination or a request for adjudication and a decision thereon under the Framework Act on National Taxes, and the administrative litigation must be brought within 90 days after the notification of the decision on the request for examination or a request for adjudication (Article 56(2) of the Framework Act on National Taxes, Articles 18(1) proviso and 20(1) proviso of the Administrative Litigation Act, and Article 20(1) proviso of the Administrative Litigation Act). As seen earlier, the Plaintiff was notified of the decision of the national tax judgment on the disposition in this case on June 16, 2004. The lawsuit in this case is unlawful since it is obvious that the period of 9

3. Conclusion

Therefore, all of the plaintiff's lawsuits of this case shall be dismissed, and it is so decided as per Disposition.