Seocho 208west 3440 ( November 28, 2008)

Whether the notice of additional dues for the portion notified without a preliminary return is illegal

If national taxes are not paid by the due date, the additional or increased additional dues will naturally be incurred by the provisions of the Act without the final procedure of the tax authority.

The contents of the decision shall be the same as attached.

1. The instant lawsuit shall be dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s refusal to refund transfer income tax of KRW 6,528,720 on September 4, 2008 to the Plaintiff.

subsection (b) of this section.

1. Circumstances of the disposition;

A. On October 22, 2007, the Plaintiff transferred the same 111-1 forest land and 7,359 square meters (hereinafter referred to as “instant land”) to Nonparty ○○○○-dong, Gyeyang-dong, Gyeyang-do, and paid KRW 20,00,000 out of the scheduled tax amount calculated as KRW 172,94,88, when filing a preliminary return on the tax base of capital gains tax calculated as KRW 172,94,88 of the said year.

B. Around March 31, 2008, the head of the same tax office issued a tax notice to the Plaintiff to the effect that the Plaintiff excluded the tax amount to be paid for the preliminary return from the amount to be paid for the preliminary return and paid the remainder excluding the amount already paid by March 31, 2008. However, the Plaintiff paid 6,528,720 won (the total amount of the unpaid tax in the transfer income tax that was scheduled for non-payment by the due date and the additional dues (the total amount of KRW 6,528,720, Apr. 30, 2008, KRW 5,098,160, KRW 1,140,440, May 8, 2008, KRW 290, and KRW 120

C. On May 31, 2008 and June 25, 2008, the Plaintiff filed an application with the Defendant for refund of KRW 11,098,830,000,00,000,000,000,000,000,000 won for capital gains tax of KRW 187,291,029,00,000,000,000,000 won for capital gains tax of KRW 189,889,140,00,000,000,000 won for capital gains tax of KRW 196,417,86,860, which was already paid at the time of the scheduled return

D. On September 4, 2008, the Defendant issued a notice to the effect that: (a) the refund of the additional dues incurred due to the delinquency in payment of the capital gains tax scheduled by the scheduled scheduled return on September 4, 2008 is denied; and (b) KRW 1,627,452, out of the land excess profit tax of KRW 11,098,873, for which the Plaintiff applied for an additional deduction as necessary expenses, the payment of KRW 1,627,452,

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6 (including additional numbers), Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination as to whether the litigation of this case is lawful

A. The plaintiff's assertion

The Plaintiff: (a) the method of imposing capital gains tax was changed from the method of imposing taxation to the method of filing a tax return; and (b) the immediate determination provision on a taxpayer who did not file a preliminary return on capital gains was deleted; (c) thus, the Plaintiff immediately issued a payment notice on the ground that the Plaintiff did not pay the tax amount scheduled even if the preliminary return is not finalized; and (d) notified and collected additional dues on the ground that the Plaintiff did not pay the tax amount scheduled; and (e) issued and collected additional dues on the ground that the payment period was excessive, as seen above, should be refunded

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Therefore, first of all, we examine the legitimacy of the instant lawsuit disputing the Defendant’s refusal to refund capital gains tax additional charges.

On the other hand, the right to claim the refund of a taxpayer for the tax refund is finalized when the requirements for refund under each tax-related Act are satisfied, and it is not finalized only by the decision of the tax authority on the refund of the tax refund. Thus, even if the procedures for the refund of the tax refund are stipulated in the Framework Act on National Taxes or by individual tax, it is nothing more than the procedures for internal administrative affairs that want the refund of the tax amount that the tax authority owes the duty to return, and the decision of refund or the refusal of refund pursuant to such procedures is not a disposition that has a specific and direct effect on the taxpayer's existence or scope of the right to claim the refund, and thus, it cannot be deemed a disposition that is the object of appeal litigation and can be directly requested for the refund in a case where the taxpayer is unfairly refused the refund (see, e.g., Supreme Court en banc Decision 88Nu6436, Jun. 15, 1989).

(2) Furthermore, as to the propriety of the Plaintiff’s application for refund of capital gains tax surcharges, pursuant to the provisions of Article 22 of the Framework Act on National Taxes, Article 10-2 of the Enforcement Decree of the same Act, and Articles 105, 106, and 116 of the Income Tax Act, capital gains tax is interpreted as having an obligation to pay the return and tax together with the return, after determining the tax amount at the time when a taxpayer makes a preliminary return of the tax base and tax amount as a tax return method (see, e.g., Supreme Court Decision 2003Du8180, Sept. 3, 2004). Furthermore, the additional dues or increased additional dues under Articles 21 and 22 of the National Tax Collection Act naturally arise without the final procedure of determination by the tax authorities (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). As such, the Plaintiff’s assertion in this case is difficult to accept the Plaintiff’s obligation to pay additional dues by the due date.

3. Conclusion

Therefore, since the plaintiff's lawsuit of this case is unlawful, it is reasonable to dismiss it. It is so decided as per Disposition.