Tax return and payment method and received by the tax authority shall not be deemed an administrative disposition subject to appeal litigation.

The transfer income tax cannot be deemed an administrative disposition which is subject to an appeal litigation by using a tax return method and the tax authority's acceptance of the report of the transfer income tax base, and there is no other evidence to acknowledge that the disposition of transfer income tax was made, so it is illegal

2011Guhap956 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Jeju Tax Office

March 21, 2012

April 4, 2012

1. The instant lawsuit shall be dismissed.

2. The plaintiff answers the costs of lawsuit.

The Defendant’s imposition of capital gains tax OOO on October 31, 201 against the Plaintiff shall be revoked.

1. Basic facts

On October 31, 201, the Plaintiff reported the transfer income tax on the transfer of the instant real estate to the Jeju Special Self-Governing Province as an OO0 Dong 0000, 000-0, 000-0 land and a warehouse on land (hereinafter collectively referred to as “the instant real estate”) under the Jeju-si Urban Planning Project (hereinafter collectively referred to as “the instant real estate”). On August 31, 201, the Plaintiff reported the transfer income tax on the transfer of the instant real estate as an OOO under Article 105 of the Income Tax Act, etc. to the Defendant on October 31, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the whole purport of the pleading

A. Main Safety Defenses

The defendant asserts that the lawsuit of this case is unlawful because there is no administrative disposition which is the object of appeal litigation, since he received a report on the tax base of transfer income from the plaintiff and did not impose any taxation against the plaintiff.

(b) relevant statutes;

It is as shown in the attached Form.

C. Determination

It cannot be deemed an administrative disposition that is subject to appeal litigation by using the tax authority’s confirmation and acceptance of a tax return in the course of return and payment by a taxpayer (see, e.g., Supreme Court Decisions 88Nu4591, Mar. 27, 1990; 96Nu8321, Jul. 22, 1997). In contrast, capital gains tax is a tax by means of tax return and payment (see Article 110 of the Income Tax Act; hereinafter the same shall apply) and is subject to an administrative disposition that is subject to appeal litigation by the Defendant having received a return of tax base of transfer income of the Plaintiff.

There is no other evidence to prove that the Defendant issued a disposition of imposition of capital gains tax, such as the statement in the purport of the claim against the Plaintiff. Accordingly, the instant lawsuit is unlawful as it does not exist because there is no other disposition that is the object of an appeal suit (it is possible for the Plaintiff to file a claim for correction pursuant to Article 45-2 of the Framework Act on National Taxes, asserting that the amount of tax originally reported exceeds the amount of tax to be reported pursuant to the Income Tax Act, and if the claim for correction is not accepted, a lawsuit can be filed with the court seeking a revocation of the disposition of rejection. Meanwhile, on February 10, 2012, the Defendant urged the Plaintiff to pay the amount of tax in arrears. However, even though the Defendant issued a demand for the payment of the amount of tax in arrears on February 10, 2012, the collection disposition aimed at realizing the final and conclusive tax claim, even if there is a defect in the taxpayer’s filing a tax return, it is not succeeded as it is without merit (see Supreme Court Decision 2005Du14394, Sept. 8, 2006).

3. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.