Samsung Life Insurance Co., Ltd. (Law Firm LLC, Attorneys Kim Han-re et al., Counsel for the defendant-appellant)

The director of the Nam-gu Tax Office (Law Firm Aionion, Attorneys Gangnam-gu et al., Counsel for the plaintiff-appellant)

November 8, 2017

Seoul Administrative Court Decision 2016Guhap68236 decided April 7, 2017

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

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

1. Purport of claim

The Defendant’s rejection disposition of correction of the comprehensive real estate holding tax in December 21, 2012, which was issued by the Plaintiff on December 21, 2015, is revoked each of the following: (a) comprehensive real estate holding tax in 2012; (b) comprehensive real estate holding tax in 321,242,170; and (c) comprehensive real estate holding tax in 2013; and (b) comprehensive real estate holding tax in 201,670,250,470; and

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The reasons for this part are as follows: “Enforcement Rule B of the Attached Tax Act” in the third 7th 7th 7th 201 in the judgment of the court of first instance is the same as the entry in the corresponding part of the judgment of the court of first instance (2th 5th to 5th 2th 2th 2th 3th 201) except that “The Enforcement Rule B of the Attached Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 328 with respect to the attached tax, etc. for the year 2012 and the attached tax, etc. for the year 2013 shall be amended by Ordinance of the Ministry of Strategy and Finance, and the attached tax, etc. for the year 2013 shall be amended by Ordinance of the Ministry of Strategy and Finance No. 411)”.

2. Related statutes;

In addition to adding "additional parts of the relevant Acts and subordinate statutes" to the relevant Acts and subordinate statutes (12-19 pages) of the judgment of the first instance, it is as shown in the attached Form of the judgment of the first instance.

3. Judgment on the defendant's main defense of safety

A. The defendant's assertion

Article 45-2(1) of the Framework Act on National Taxes does not fall under the “person who has filed a tax base return by the statutory deadline,” and thus, the Plaintiff does not have the right to file a request for correction. Even if the Plaintiff has the right to file a request for correction, the Plaintiff should have filed a request for correction within 90 days from the date of receipt of the notice of imposition of the final and conclusive tax, etc. for the year 2012 and the year 2013 pursuant to the proviso to Article 45-2(1) of the Framework Act on National Taxes. Nevertheless, the Plaintiff filed the instant request for correction on November 2, 2015, 90 days from the date when the Plaintiff became aware of such disposition. As such, the instant request for correction cannot be deemed a rejection

B. Determination

(1) Relevant legal principles

Article 45-2(1) of the former Framework Act on National Taxes (amended by Act No. 1352, Dec. 15, 2015; hereinafter the same shall apply) provides that “In any of the following cases, a person who has filed a tax base return by the statutory due date of return may file a request with the head of the competent tax office for rectification within five years after the statutory due date of return expires: Provided, That a person who has filed a tax base return by the statutory due date of return may file a request for rectification within 90 days (limited to five years after the statutory due date of return is notified of such disposition) from the date the person becomes aware of the relevant disposition with respect to the increased tax base and amount of national taxes (where a tax base and amount of national taxes are notified of such disposition, within five years after the statutory due date of return expires).” Paragraph (2) provides that “A person who has filed a tax base return by the statutory due date of return or who has received a determination of the tax base and amount of national taxes, may file a request for rectification within 2 months after he/she becomes aware of the period prescribed in paragraph (1).

(2) Whether the Plaintiff constitutes an applicant for rectification under Article 45-2(1) of the Framework Act on National Taxes

In full view of the overall purport of the arguments in Gap evidence Nos. 4, 5, 6, Eul evidence Nos. 3 and 4, the plaintiff filed a report of exclusion through the preparation of the report of comprehensive real estate holding tax by each National Tax Service (CRAX-C; hereinafter "the program in this case") around September 30, 2013 in relation to the final tax for the year 2012, the plaintiff filed a report of exclusion from the total amount by regarding the final tax for the year 2012, around September 28, 2012, and the final tax for the year 2013. As such, it is problematic whether a taxpayer who filed a report of exclusion from the total amount through the program in this case by September 30, 200 of the corresponding year can be seen as a person who filed a report of tax base by the statutory deadline for filing a return of tax base by regarding it as a person who can file a

Examining the following circumstances revealed through the respective descriptions of evidence Nos. 8 through 12 and the purport of the entire pleadings, in light of the relevant statutes, it is difficult to view that the person who filed a report of exclusion from aggregate under the Comprehensive Real Estate Holding Tax Act is the same as the person who filed the report of tax base. Thus, the Plaintiff’s report of exclusion from aggregate through the instant program alone does not constitute a person entitled to file a request for correction under the main sentence of Article 4

① According to Article 16(1) and (3) of the Gross Real Estate Tax Act, a taxpayer who intends to pay a comprehensive real estate holding tax by means of imposition, in principle, is obliged to report the tax base and amount of the comprehensive real estate holding tax to the head of the competent district tax office from December 1 to December 15 of the pertinent year. According to Article 8(2) of the Enforcement Decree of the Inheritance Tax Act, when filing a report on the tax base and amount of the comprehensive real estate holding tax pursuant to Article 16(3) of the Gross Real Estate Tax Act, a taxpayer shall submit a report on the comprehensive real estate holding tax, a specification of objects of taxation, and a statement of excess tax burden.

② Meanwhile, Article 8(3) of the Gross Real Estate Tax Act provides that the taxpayer holding a house excluding aggregate exclusion shall report the current status of the relevant house to the head of the district tax office having jurisdiction over the place of tax payment from September 16 to September 30 of the relevant year, thereby imposing the taxpayer the duty to report aggregate exclusion housing. According to Articles 3(8) and 4(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, when the taxpayer is subject to the application of the exclusion exclusion provision, he/she shall report according to the report

(3) "Comprehensive real estate tax to be submitted at the time of filing a tax base return" shall state the taxpayer's personal information, housing subject to taxation, general aggregate land, number of taxable objects of separate aggregate land, tax base, tax rate, aggregate real estate tax, amount of taxes to be deducted, amount of taxes to be deducted, amount of tax credit, amount of tax credit, amount of tax calculated, amount of tax exceeded the upper limit of tax burden, additional amount equivalent to interest, unfaithful filing, additional tax, penalty tax to be paid, amount of voluntary payment, amount of tax to be paid in installments, amount of tax to be deducted, amount of tax to be deducted and the aggregate thereof (attached Form 3 of Article 5 (2) 3 of the Enforcement Rule of the Gross Real Estate Tax Act, detailed statement of objects subject to taxation of housing in the immediately preceding year, shall state the location of the house subject to taxation owned by the taxpayer, total date of acquisition, size, ratio of taxation, area of house, unit price of land in the immediately preceding year, standard market price of land in the relevant year, amount of individual property tax reduction and exemption and exemption in attached Form 4.

(4) On the other hand, only a list of real estate subject to reporting, housing location, housing classification, housing classification, area for exclusive use, publicly notified price and lease classification, lease commencement date, lessee-related matters (in the case of a report on exclusion of aggregate of rental housing), classification of reports, approval date of a project plan (the date of building permission), approval date of use (the date of inspection of use) and information to verify whether the report falls under the requirements for exclusion of aggregate (attached Form 2, 3, Article 2(1), (3), 1, and 2 of Enforcement Rule of the Inheritance and Gift Tax Act).

⑤ The instant program is a system that facilitates the preparation of the report of exclusion, and it is impossible to prepare the report of comprehensive real estate holding tax or the specification of objects of taxation in addition to the report of exclusion from addition through the instant program. The Plaintiff printed out or transmitted the report of exclusion from addition made using the instant program to the Defendant, and submitted it to the Defendant, unlike others, did not submit the report of comprehensive real

(6) In filing a report on comprehensive real estate holding tax, the list of real estate subject to taxation, the tax base, and the amount of tax should be prepared and submitted. On the other hand, in filing a report on the exclusion of aggregate, insofar as the Comprehensive Real Estate Holding Tax Act only prepares and submits the minimum information to verify whether the list of real estate subject to exclusion and aggregate is included in the list of real estate subject to exclusion, it is difficult to deem that submitting a report on exclusion to aggregate has fulfilled the duty of cooperation to the tax authority to the same extent as

7. According to Article 45-2(1) of the former Framework Act on National Taxes, “a person who has filed a tax base return by the statutory due date of return” may file a request for correction within five years after the statutory due date of return expires, on the grounds that “if the tax base and tax amount entered in the tax base return exceed those to be reported under the tax-related Acts.” However, in cases where only the return was filed as the Plaintiff, the reported tax base and tax amount are nonexistent

(3) Whether the time limit for filing a request for correction is observed

Even if the Plaintiff’s obligation to cooperate as required by the Comprehensive Real Estate Tax Act can be substantially assessed as identical to the person who filed a tax base return, the entire amount of tax imposed should be deemed to fall under “the increased tax base and tax amount due to the determination or revision” under the proviso of Article 45-2(1) of the former Framework Act on National Taxes. In such cases, a request for correction shall be filed within 90 days from the date when the Plaintiff became aware of the relevant disposition. The Plaintiff filed a request for correction with respect to the attached tax on the attached tax, etc. for the year 2012 and 2013, past 90 days from the date when he/she became aware of the disposition on the attached tax, etc. for the year 2012 and 2013, as seen earlier. Therefore, the Plaintiff’s request for correction constitutes an unlawful request for correction with the lapse of the time limit.

On March 10, 2016, which was after the disposition of the final tax return for the year 2012 and the year 2013, the Plaintiff filed a judgment revoking the portion exceeding the justifiable tax amount among the disposition of imposition of the final tax return for the year 2010 under the premise that the original tax return and the decision were not effective after the disposition of the final tax return for the year 2012 and the year 2013 (attached Table 3 attached Table 2) (see Supreme Court Decision 2015Du3942). Thus, the Plaintiff asserts that the subsequent request for correction is an ex post facto request for correction because it was confirmed that the initial tax return and the decision were erroneous, and that the subsequent request for correction did not exist for the reasons subsequent to the initial tax return or taxation, and thus, the interpretation of the instant formula does not change the legal effect of the act that constitutes the basis for calculating the tax base and the amount of tax after the statutory due date of return of the national tax, or the existence or legal effect of the first decision of the Supreme Court.

(4) The theory of lawsuit

The defendant's notice of rejection of the claim for correction of this case is not a rejection disposition subject to appeal, since it appears to be any mother or illegal, and thus, it cannot be viewed as a rejection disposition.

4. Conclusion

Thus, the lawsuit of this case shall be dismissed as unlawful. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the lawsuit of this case is dismissed.

[Attachment Form 5]

Judges Poscopic fever (Presiding Judge)