Where a tax authority after voluntary payment of capital gains tax issues a copy of a decision on capital gains tax to a taxpayer, whether such taxation exists (affirmative)

If a copy of the decision of capital gains tax stating tax base and amount of tax is delivered in response to a request for confirmation by a person who voluntarily paid capital gains tax at the time of the final return on tax base, and the contents of the decision of capital gains tax are notified, even if such notification was not made in accordance with the tax payment notice under Article 183(1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 14467 of Dec. 31, 1994), it can be deemed that a disposition of capital gains tax was imposed under the relevant Acts and subordinate statutes, such as Article 128 of the former Income Tax Act (wholly amended by Act No. 4803 of Dec. 22, 1994), Article 128 of the former Income Tax Act, Article 183 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 1467 of Dec. 31, 194).

Article 9 of the National Tax Collection Act, Article 128 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) (see current Article 83), Article 183 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) (see current Article 149)

Supreme Court Decision 82Nu383 delivered on March 27, 1984 (Gong1984, 732) Supreme Court Decision 87Nu776 delivered on November 10, 1987 (Gong1988, 116) Supreme Court Decision 88Nu1476 delivered on June 27, 1989 (Gong1989, 1819) 88Nu9077 delivered on October 27, 1989 (Gong1989, 1819)

Kim Kim

Head of Guro Tax Office

Seoul High Court Decision 95Gu37324 delivered on November 15, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below held that even though the defendant received the tax that was voluntarily paid by the plaintiff at the time of the final return on the transfer income tax of this case and made the final decision, the tax liability cannot be deemed to have been imposed unless the defendant notified the tax base and tax amount by the tax payment notice, and the defendant cannot be deemed to have received the plaintiff's final return on the tax base of transfer income of this case, and there is no confirmed disposition of imposition on December 31, 1994, which is the object of the disposition of revocation of imposition

Article 128 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994; hereinafter the same) provides that in the case of a decision based on a final return on tax base, a taxpayer shall be notified in writing of tax base, tax amount, and other necessary matters under the conditions as prescribed by the Presidential Decree. Article 183(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994; hereinafter the same shall apply) provides that the above notification shall be given even if there is no tax amount to be paid. Thus, the tax authority shall notify in writing the taxpayer of the purport of the decision on the final return on tax base of capital gains tax even if the details of the decision on the final return on tax

According to the records, the plaintiff found the defendant's office without giving written notice of the decision of capital gains tax and confirmed the contents of the decision, and received a copy of the decision of capital gains tax (Evidence 2) from the public official belonging to the defendant. According to the copy of the decision, the defendant decided capital gains tax for the plaintiff in 1993 as tax base amounting to 95,178,235, tax rate of 50%, tax rate of 43,089,117, tax amount of 43,089,117, tax amount of 43,089,117, tax amount of 43,089, tax amount of 117, and tax amount of 0 won. If the copy of the decision of capital gains tax stated in the tax base and amount of tax were delivered in response to the plaintiff's request for confirmation and notified the contents of the decision of capital gains tax, it shall be deemed that the above notice was not subject to this tax notice (in this case's tax payment notice, collection notice, etc.).

Therefore, the existence of taxation disposition is a matter of ex officio investigation and the plaintiff submitted a copy of the above decision decision as evidence. In light of the fact that the court below should have deliberated and judged whether the defendant's delivery of a copy of the above decision decision to the plaintiff is a written notification under the provisions of Article 128 of the former Income Tax Act and Article 183 of the Enforcement Decree of the same Act, but it is erroneous in the misapprehension of legal principles as to the procedure for the confirmation of capital gains tax, thereby failing to complete deliberation

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)