Cho High Court Decision 2005Du2019 ( October 17, 2005)

It is illegal to have been filed after the period of filing;

90 days after notice of a decision on a request for adjudication is filed and dismissed.

2011Gudan14695 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of the District Tax Office

October 11, 2011

November 1, 2011

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

1. The primary purport of the claim is to determine that the amount of capital gains tax imposed by the plaintiff (appointed party, hereinafter referred to as the "Plaintiff") is greater than the amount of the gift tax imposed by the selected party, and thus, constitutes an unfair act under Article 101 (2) of the Income Tax Act, and to revoke the imposition and notification of capital gains tax of 226,716,160, which was imposed additionally on the plaintiff on October 16, 2004.

2. First preliminary claim: The defendant must re-determine the 0B capital gains tax decision resolution, gift tax decision resolution, and the plaintiff's capital gains tax decision resolution by the 00B, and the plaintiff's capital gains tax decision resolution by about six years have not passed since the correction has not been made until about six years have passed, the imposition and notification of capital gains tax of 226,716,160 won for the plaintiff on October 16, 2004 additionally shall be revoked.

3. 2 preliminary claim: The defendant may calculate the amount equivalent to the gift tax that 0B transferred the assets donated to the plaintiff who is the spouse by 0B from the plaintiff who is the spouse in the necessary expenses. The defendant shall cancel the imposition and notification of the transfer income tax of 226,716,160, which was imposed on the plaintiff on October 16, 2004.

1. Basic facts

A. On July 22, 2002, the Plaintiff purchased OOOO 000 OOO 0000 (hereinafter “the apartment of this case”) from Gangnam-gu Seoul, Seoul, and donated 1/2 shares of the apartment of this case to 00B on December 17, 2002, and on April 18, 2003, the registration of ownership transfer was completed in the name of the Plaintiff and 00B in the name of 00 OO O 00,000.

B. On August 30, 2003, the Plaintiff and the AppointB entered into a sales contract for selling the instant apartment at KRW 2,800,000,000, and received the remainder of the purchase price on November 20, 2003. On January 28, 2004, the Plaintiff paid KRW 159,199,320, and KRW 100,000 as capital gains tax to the Defendant, while making a preliminary return on the tax base of capital gains tax on the transfer of the instant apartment, the AppointB paid KRW 109,199,340, and KRW 340, respectively.

C. On October 12, 2004, the Defendant: (a) donated 1/2 shares in the apartment sale right to the Plaintiff to 0B in a special relationship with the Plaintiff in order to reduce the transfer income tax; and (b) deemed that the Plaintiff transferred 1/2 shares in the apartment sale right to the Plaintiff on November 20, 2003, within three years from the donation date; and (c) applied the wrongful calculation rules under Article 101(2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005), the Defendant revoked the Plaintiff’s transfer of all shares in the apartment of this case to 0B on October 12, 2004, the transfer income tax for 2003, 108530, 109, 985, 1000, 1000, and 900, 106, 2016, 206, 206, 2016.

D. On May 16, 2005, the Plaintiff filed an appeal against the instant disposition with the National Tax Tribunal on May 16, 2005, and the National Tax Tribunal dismissed the Plaintiff’s appeal on August 17, 2005. The decision was notified to the Plaintiff on August 22, 2005.

E. The Plaintiff filed the instant lawsuit on June 15, 201.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 11, Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. Whether the plaintiff's lawsuit is light

The Plaintiff’s primary claim and the conjunctive claim are all lawsuits seeking the cancellation of the disposition of this case. As such, the primary claim and the conjunctive claim cannot be deemed to be separate claims. A lawsuit seeking the cancellation of the disposition of national taxes, such as income tax, may not be brought without going through a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon, and shall be brought within 90 days after the decision on the request for examination or adjudgment is notified (see Article 56(2) and (3) of the Framework Act on National Taxes). In this case, the instant lawsuit was brought on June 15, 201 after the lapse of 90 days from the date when the decision on the request for adjudication was notified to the Plaintiff. As seen earlier, the Plaintiff’s lawsuit of this case was instituted after the expiration of the period for filing the lawsuit, and thus, is unlawful.

B. Whether the action by the AppointB is legitimate

According to the above facts, 0B is not the other party to the disposition of this case, and there is no evidence to prove that 0B violated the legal interests of 0B due to the disposition of this case. Thus, 0B does not have the eligibility to seek cancellation of the disposition of this case and the lawsuit of 0B is unlawful.

3. Conclusion

Then, the lawsuit of this case (the lawsuit of the plaintiff and the 00B) is all unlawful, so it is decided to dismiss it as per Disposition.