National High Court Decision 2007Da3794 ( November 12, 2007)

Whether it is possible to file a lawsuit where a decision to dismiss the result of a request for trial is made.

If a decision of rejection is made on the ground of the lapse of the time period as a result of a request for a trial, the revocation lawsuit does not meet the requirements of the previous trial procedure

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

Article 56 of the Framework Act on National Taxes

1. The main part of the lawsuit in this case shall be dismissed.

2. The plaintiff's conjunctive claim is dismissed.

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

As to the imposition of KRW 104,570,360 on January 6, 2006 by the Defendant against the Plaintiff, the Defendant seeks confirmation of the revocation and invalidity in the preliminary case.

1. Details of the instant disposition

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the pleadings as a whole in each entry of Gap evidence 1-1-2, 2, 3, 1-2, 3-2, 3-2, 3-5, and 5.

A. On December 16, 2003, the Plaintiff purchased 2,50,000,000 ○○○-dong 315-○○-dong 501, 601, and 701 (hereinafter “instant building”) from ○○○ Construction Co., Ltd. (hereinafter “○○ Construction”) for sale in units, and completed the registration of ownership transfer on December 23, 2003.” (B) the Defendant investigated the purchasing place of the instant building on December 16, 200, and recognized that the following money was donated from ○○, the father of the Plaintiff:

① From the acquisition value of the building of this case under the name of the Plaintiff, the amount of KRW 2,00,000,000 paid for a loan from the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which was obtained by deducting the unpaid amount of KRW 154,51,000, and the unpaid amount of KRW 156,604,600, and KRW 248,85,000 ( KRW 2,50,000 - KRW 2,000,0000, KRW 154,51,0001, KRW 46,604,000).

② Interest KRW 224,718,000 on loans from the above ○○○ branch of the Agricultural Cooperatives Federation

③ Interest of KRW 22,567,000 on 90,000 for ○○○○○ loan in the name of ○○○○○.

④ Interest of KRW 49,137,000 on loans of KRW 200,00,000 in the name of ○○○○○○ Community Credit Cooperatives

(5) Interest on KRW 100,00,000 for a loan of 100,000,000 for a branch bank under the name of ○○○.

6. 65,041,000 won for the facility for the business of the franchise business after the acquisition of the building in this case

The No. 157,183,00 won, including acquisition tax, etc. related to the acquisition of the building of this case (hereinafter the amount of each item shall be specified as the corresponding number, such as the amount of items (i)), and the defendant shall be the plaintiff on January 6, 2006, and the plaintiff on January 6, 2006, after calculating the tax base of 458,193,000 won (798,193,000 won - 340,000,000 won) calculated by deducting the total amount of donated debts from the total amount of donated property in each item of the above paragraph (b) as the tax base, and imposing KRW 104,570,360 (hereinafter the "disposition of this case").

A. The defendant's main defense

The main claim part of the lawsuit in this case is unlawful as it is filed without due process of a prior trial.

(b) Fact of recognition;

The following facts are not disputed between the parties, or acknowledged by comprehensively taking account of the respective descriptions of Gap evidence 1-1-1-1, evidence 1-2, evidence 1-2, evidence 4-1, 2, 3, 7, 8, and 9-9 and the whole purport of arguments.

(1) On October 25, 2002, the Plaintiff’s parent, the ○○○, and the ○○○○○ entered into a contract with ○○ Construction to purchase the instant building in KRW 2,690,000,000, and on January 28, 2003, the buyer was the ○○○ alone.

Sheb○○ cancelled the above sales contract, and the Plaintiff sold the instant building in KRW 2,550,00,000 on December 16, 2003, and completed the registration of ownership transfer on December 23, 2003.

Secondly, ○○ raises an objection that the sale price is high for ○ Construction on behalf of the Plaintiff.

x) After investigating the source of funds to the Plaintiff, the Defendant’s public official confirmed that the remainder except the loans of KRW 2,100,000,000 under the Plaintiff’s name was actually fully borne by the ○○○○. On November 15, 2005, the Defendant’s public official obtained a written confirmation (No. 3-1) from the ○○○○ on November 15, 2005.

(v) Meanwhile, on April 17, 2006, ○○ delegated the Plaintiff’s right to object to the instant disposition, and filed an objection through a tax accountant on April 17, 2006, and withdrawn the said objection on May 3, 2006.

⑹ 원고는 2007. 9. 21. 이 사건 처분에 불복하여 국세심판원에 심판청구를 제기하여, 2007. 11. 12. 기간도과를 이유로 각하결정을 받았다.

C. Determination

(1) According to Articles 55, 56, 67, and 68 of the Framework Act on National Taxes, in filing a lawsuit seeking revocation of a taxation disposition, the procedure of the previous trial under the law must undergo a request for a trial and a decision thereon. The above procedure of the previous trial shall be instituted within 90 days from the date (if a notice of disposition is received, the date of its receipt) on which the pertinent disposition is known. If the procedure of the previous trial is unlawful due to the lapse of the period, the revocation lawsuit shall also be deemed unlawful because it fails to meet the requirements of the previous trial procedure.

B. In light of the facts acknowledged as above and the plaintiff's assertion, there is no evidence to acknowledge that ○○ or a certified tax accountant voluntarily voluntarily withdrawn an objection against the disposition of this case without the plaintiff's consent, it is reasonable to deem that the appeal against the disposition of this case was filed with the plaintiff's consent or delegation. The appeal of this case is filed more than 90 days after the date of the notification of the disposition of this case, and it is illegal as the period of time expires from the date of withdrawal. Thus, the lawsuit of this case is unlawful as it does not go through legitimate pre-trial procedure.

3. Judgment on the claim for confirmation of invalidity

A. The plaintiff's assertion

The plaintiff asserts that there is a serious and clear defect as follows in the disposition of this case, and sought confirmation of its invalidity.

(1) After the Plaintiff purchased the instant building, KRW 172,531,520 of the value-added tax refund (172,531,520) received from the ○○ Tax Office, and the said amount should be excluded from the value of the instant gift.

With regard to the amount of Sheet 6, the Plaintiff’s mother, only purchased equipment, etc. to conduct the business of the instant building, and the Plaintiff did not have received any donation of the equipment, etc.

Article 28(1) of the Civil Act provides that “The Plaintiff shall rent the instant building to the maximum extent of KRW 150,000,000,000, and the maximum of ○○ prior to the lease deposit shall substitute for the repayment of the debt borrowed from the maximum of ○,00,000.”

B. Relevant statutes

Article 2 (Gift Tax Taxables)

Article 4 (Gift Tax Liability)

Article 45 (Presumption of Donation of Funds, etc. for Acquiring Property)

C. Determination

(1) A tax disposition imposed on a person who does not have any factual basis as to the legal relation, income, or act that is subject to taxation is significant and obvious, but in a case where there are objective circumstances to mislead him as to any legal relation or factual relation that is not subject to taxation, and where it is possible to accurately investigate the factual basis as to which such legal relation or factual relation is subject to taxation, if it can only be identified as to whether it is subject to taxation, it cannot be said that it would be apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact subject to taxation is void as a matter of course (see, e.g., Supreme Court Decisions 95Da20379, Dec. 20, 1996; 200Da17339, Jun. 29, 200).

B. In light of the above legal principles, the plaintiff's first contract to purchase the building of this case was concluded by the plaintiff's parents in preparation for the above 2.B., the plaintiff's first contract to sell the building of this case was cancelled without any special reasons, and the plaintiff completed the registration of ownership transfer under the plaintiff's name. The plaintiff's main position in the sales contract of this case seems to be ○○. The plaintiff stated that the defendant's public official's consent to all of the gift value of this case was acknowledged during the investigation process of the plaintiff's financial source. The plaintiff's objection against the disposition of this case was withdrawn and the plaintiff filed the appeal of this case after the lapse of one year and four months thereafter, even if the plaintiff's assertion was acknowledged, it cannot be deemed that there was serious and apparent defect in the disposition of this case. Moreover, the plaintiff's disposition of this case is not sufficient to acknowledge the plaintiff's assertion as to each of the 1.6 evidence, evidence Nos. 8 and 9, evidence Nos. 10-1 through 7, A13 and evidence No. 14-2.

Then, the plaintiff's above assertion cannot be accepted.

4. Conclusion

Therefore, the part of the main claim among the lawsuit in this case is unlawful, and the plaintiff's conjunctive claim is dismissed as it is without merit. It is so decided as per Disposition.