Cho High Court Decision 2010Du3156 ( November 23, 2010)

Tax amount to be paid without notice, additional charges, and increased additional charges are not a disposition subject to objection.

The notified tax amount, additional charges, and increased additional charges on capital gains tax payable without permission shall not be deemed a disposition subject to appeal litigation, so it shall be dismissed in an unlawful manner.

2010Gudan28345 Revocation of Disposition of Imposing capital gains tax

KimA

○ Head of tax office

May 17, 201

June 14, 2011

1. Each lawsuit against the Plaintiff is dismissed regarding the remainder (the principal, additional charges, and increased additional charges of capital gains tax) of the Defendant’s imposition of capital gains tax as of July 12, 2010 and the imposition of capital gains tax as of October 11, 2010, excluding each additional tax.

2. The plaintiff's remaining claims are dismissed.

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

The imposition of capital gains tax of KRW 8,011,820 (including additional charges and increased additional charges) by the Defendant against the Plaintiff on July 12, 2010 and the imposition of capital gains tax of KRW 22,758,770 (including additional charges and increased additional charges) on October 11, 2010 shall be revoked, respectively.

1. Details of the disposition;

(a) disposition dated 12, 2010

(1) On March 3, 2010, the Plaintiff transferred the golf membership of ○○○○○○○○○○, located in 257-1, and filed a preliminary return on the tax base of capital gains on April 2, 2010, but did not pay the reported amount within the scheduled period.

(2) Accordingly, on July 12, 2010, the Defendant decided and notified the Plaintiff of KRW 8,01,820, including the additional payment for arrears, KRW 99,692, the transfer income tax for the year 2010 (hereinafter “instant first disposition”).

(3) The Defendant issued a disposition No. 1 of the instant case and provided guidance on additional dues to the effect that additional dues should be additionally added to KRW 240,350 if the payment deadline is to be made within one month from July 31, 2010, and that additional dues should be paid by September 30, 2010 after the lapse of the payment deadline.

(b) disposition dated 11, 2010

(1) On June 16, 2010, the Plaintiff transferred golf membership of △△△-2 located in △△△-2 located in △△-dong, △△-dong, △△△-dong, and on July 19, 2010, the preliminary return of the capital gains tax base was made, but did not pay the reported tax amount within

(2) On October 11, 2010, the defendant decided and notified 22,758,770 won of transfer income tax for the year 2010, including 276,531 won for the plaintiff, and the defendant added 1 and 2 of this case, "each disposition of this case".

(3) In taking the instant disposition No. 2, the Defendant: (a) notified the Defendant that the payment deadline should be additionally paid KRW 682,760; and (b) provided guidance on additional charges to the effect that additional charges should be additionally paid when the payment deadline is by December 31, 2010 after the lapse of the payment deadline.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

In the case of transfer income tax reverted to year 2010, the Plaintiff’s notification that each of the instant dispositions should be paid prior to the due date for the final return under Article 111(1) of the Income Tax Act ( May 31, 201, i.e., May 31, 201) is unlawful even if the Plaintiff paid the final return.

As to this, the Defendant’s respective dispositions of this case are unlawful since they merely notified that the tax amount including additional tax should be the same amount as the reported tax amount because they did not pay the returned tax amount after making a preliminary return on the tax return method.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Principal capital gains tax out of each disposition of this case

Transfer income tax is a tax method for filing a return, and is obligated to pay the amount of tax along with the return when the taxpayer files the tax base and amount of tax. As such, where a taxpayer only files a return of tax base and amount of tax and notifies a uniform payment of the amount of tax without any correction as to the reported matters by the tax authority is a collection disposition for the collection of the final tax, and cannot be deemed a tax disposition subject to a revocation lawsuit (see, e.g., Supreme Court Decision 2003Du8180, Sept. 3, 2004).

In this case, the principal portion of the capital gains tax among the dispositions in this case is unlawful since the Plaintiff reported the tax base and amount of capital gains tax, but notified that the Defendant would pay the same amount of tax as the reported amount of tax, and it cannot be deemed as a taxation subject to revocation lawsuit.

(2) Of each disposition of the instant case, the part regarding additional charges and increased additional charges

The surcharge or increased surcharge provided for in Articles 21 and 22 of the National Tax Collection Act is naturally created by a law without a final procedure by the competent tax office, if national taxes are not paid by the due date, and thus, the notification of the surcharge or increased surcharge cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Of each of the dispositions of this case, the part on which the surcharge or increased surcharge seeks revocation is unlawful.

(3) Additional tax in each of the dispositions of this case

As seen earlier, the Plaintiff’s failure to pay each returned tax upon filing a preliminary return of capital gains tax is deemed to be subject to an additional tax if the Plaintiff did not pay such returned tax (see Article 47-5 of the Framework Act on National Taxes). Accordingly, the Defendant’s imposition of additional tax among each disposition of this case cannot be deemed unlawful on the ground that the Defendant imposed an additional tax on the Plaintiff. Therefore, this part of the Plaintiff’s assertion is without merit ( even if capital gains tax is a tax on the method of filing a return of capital gains tax, the imposition of additional tax shall be a disposition separate from the imposition of principal tax, and thus, the Defendant’s assertion that each disposition of this case

3. Conclusion

Therefore, the part of the lawsuit in this case seeking the revocation of the remainder (the principal tax of the transferred income tax, the additional tax and the increased additional tax) excluding the portion of the additional tax of this case is unlawful, and thus, each of them is dismissed. The remaining claims of the plaintiff (the part seeking the revocation of the additional tax of each of the dispositions in this case) are dismissed. It is so decided