Judgment on whether the period of filing a lawsuit is expired based on the time the claim is amended.

Where the purport of the claim for revocation of the entire disposition of this case (including the main tax) is modified while seeking revocation of the part of the penalty tax, the determination is made as to whether the period for filing a lawsuit expires as at the time the purport of the claim is modified. Therefore, according to the records, the main tax claim is unlawful after the lapse of the period for filing a lawsuit. The penalty tax is unlawful as it has

2014Gudan2808 Revocation of Disposition of Imposing Additional Tax

EAA

Head of Guro Tax Office

October 8, 2015

November 19, 2015

1. The instant lawsuit shall be dismissed.

2. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The imposition of the capital gains tax of 000 won (including additional tax) on the Plaintiff on April 3, 2013 by the former Cheong-gu branch Defendant on April 3, 2013 shall be revoked.

1. Details of the disposition;

A. The Plaintiff reported and paid ○○○○○○○-dong ○○○○○○-dong ○○○○○○○○-dong ○○○○○○ on May 30, 2007, and received a refund of the said transfer income tax (including additional charges) around September 18, 2008. In applying the reduction and exemption of newly-built house under Article 99-3 of the Restriction of Special Taxation Act, the Defendant deemed that the transfer income amount from the acquisition date of the previous house does not constitute the income subject to reduction and exemption, and decided and notified the Plaintiff on April 3, 2013, and the date prior to the acquisition date of the newly-built house (including additional taxes) for the transfer income tax for the year 2007 (hereinafter “instant disposition”). The Plaintiff dissatisfied with the instant disposition, but the said request was dismissed on December 4, 2013, and the said dismissal ruling was notified to the Plaintiff around that time.

D. On February 13, 2014, the Plaintiff filed a lawsuit seeking revocation only for the additional tax of the instant disposition, and added the claim seeking revocation of the main tax of the instant disposition to the purport of the claim and the application for modification of the cause of the claim as of March 27, 2015. [Grounds for recognition] In the absence of dispute, each of the entries in Gap 1, 2, 3, 5, 6, Eul 1, 2, and 3 evidence (including each number), and the purport of the entire pleadings; 2. Whether the instant lawsuit is legitimate

A. Determination of principal tax portion

1) Parties’ assertion

The defendant asserts that since the lawsuit on the principal tax has been filed after the period for filing the lawsuit has expired, it should be dismissed as illegal.

Accordingly, the plaintiff asserts that the issue of compliance with the period of filing the changed lawsuit should be determined on the basis of the first date of filing the lawsuit.

2) Determination

According to Article 56 (3) of the Framework Act on National Taxes, an administrative litigation shall be filed within 90 days from the date the decision on a request for judgment is notified, and whether a lawsuit against a principal tax has been filed within 90 days from the date the original written judgment is served.

However, in order to facilitate the exercise of taxation rights and the realization of tax claims, penalty taxes are a kind of administrative sanctions imposed on taxpayers who violated their obligations prescribed by tax laws without justifiable grounds. For convenience of collection procedures, imposition of penalty taxes is merely imposed along with the amount of principal tax calculated under the relevant tax laws. Since the nature of national tax established under tax laws differs in essence from that of the principal tax, imposition of penalty taxes is separate from that of the principal tax (see, e.g., Supreme Court Decision 2004Du2356, Sept. 30, 2005) (see, e.g., Supreme Court Decisions 82Nu315, Dec. 14, 1982; 2004Du7023, Nov. 25, 2004; 2004Du7023, Nov. 25, 2004). Thus, the determination of the period for filing a new lawsuit after the Plaintiff’s filing a claim for revocation of the original claim is unlawful.

B. Determination on additional tax portion

If an administrative disposition is revoked, the disposition becomes null and void, and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2004Du5317, Sept. 28, 2006). However, since the Defendant’s revocation of the part of the penalty tax in the instant disposition while the lawsuit is pending, the Plaintiff is also the Plaintiff, the claim for revocation of the disposition without extinguishment of the lawsuit on the portion of the penalty tax has become null and void as there is no benefit

3. Conclusion

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