Revocation of disposition imposing capital gains tax

It can be recognized that the plaintiff's request for adjudication was dismissed on the ground that it was unlawful after the deadline for request. The part of the lawsuit in this case is unlawful because it was filed without going through legitimate procedure of the preceding trial.

The contents of the judgment are the same as attachment.

2017Gudan1821 Revocation of Disposition of Imposing capital gains tax

CHAPTER A

BB Director of the Tax Office

on 06 October 04, 2018

on October 27, 2018

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 36,785,590 against the Plaintiff on July 5, 2011 and of KRW 224,031,730 against the Plaintiff on June 201 shall be revoked.

1. Details of the disposition;

A. On April 2, 2009, the Plaintiff purchased from the Korea Asset Management Corporation KRW 1,358,100,000 and sold each of the above real estate to CCC on March 2, 2010 after completing the registration of transfer of ownership on June 5, 2009.

B. At the time of reporting the transfer income tax on the instant real estate, the Plaintiff reported the acquisition value to KRW 1,080,782,744, transfer value to KRW 1,500,000, and necessary expenses to KRW 433,00,000. However, on July 5, 2011, the Defendant recognized the necessary expenses as KRW 48,00,000, and calculated the transfer difference to KRW 370,217,256, and imposed the transfer income tax on KRW 224,031,737 (including additional tax) (hereinafter referred to as “instant first disposition”). In addition, the Plaintiff imposed the transfer income tax on KRW 22,403,173 (hereinafter referred to as “instant second disposition”).

C. On July 5, 2011, the Defendant: ○○○○○○-ro 105, c 303, a domicile of the Plaintiff on the Plaintiff’s resident registration.

Although the notice of tax payment was served by registered mail (○○, ○○○, ○○○○○) but was returned, it was returned.

The second service was served on August 25, 201, because the second service was returned on the ground of the name of the address of Eardodo.

The above tax notice was served by public notice.

D. On February 2, 2018, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition No. 1, but was dismissed on the ground of the lapse of the period for request on March 29, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings.

2. The plaintiff's assertion

Since the Plaintiff sold the instant real estate to CCC at KRW 1,358,100,00, the Plaintiff’s first and second dispositions of this case, based on the premise that there was a difference between the acquisition value and the transfer value, should be revoked as unlawful.

3. Whether the lawsuit of this case is legitimate

A. The defendant's main defense

1) Since the instant disposition was not limited to the Defendant, the lawsuit against the Defendant seeking revocation of the instant disposition No. 2 is unlawful.

2) In addition, the instant lawsuit is unlawful because it did not go through the pre-trial procedure.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the eligibility of the Defendant of the Disposition No. 2 of this case

Article 176-8 subparag. 3 of the former Local Tax Act (amended by Act No. 10416, Dec. 27, 2010; hereinafter referred to as the "Local Tax Act") provides that "income tax portion" means a local income tax that is the tax base of the amount of income tax payable pursuant to the Income Tax Act (excluding an additional tax for unfaithful payment collected by a person who has filed a preliminary return or a final return on tax base of income tax, for failing to pay the relevant returned tax amount in whole or in part). Article 177-4 provides that a person liable to pay pro rata income tax shall pay it to the head of a Si/Gun having jurisdiction over the place of tax payment (Article 1(1)); and that where the head of a tax office collects income tax in accordance with the method of assessment and assessment in accordance with the Framework Act on National Taxes or the Income Tax Act (Article 176-8(2) and (5)). Therefore, an appeal seeking revocation of a local income tax portion shall not be filed by the head of a tax office, but shall have jurisdiction over the head of a Si/Gun having jurisdiction over the place of tax payment (see Supreme Court).

On July 5, 2011, as long as the imposition and notification of local income tax of this case against the Plaintiff is deemed to be imposed and notified by the head of a Si/Gun having jurisdiction over the place of payment of income tax pursuant to Article 177-4(5) of the Local Tax Act, the other party to the appeal suit seeking revocation of the disposition imposing local income tax of this case shall be the head of a branch office of ○○ City having jurisdiction over the place of payment of income tax of the Plaintiff.

Therefore, among the lawsuits in this case, the part seeking the revocation of the disposition No. 2 in this case is unlawful as it is against a non-qualified person.

C. Determination as to whether the previous trial procedure is lacking

Article 18 (1) of the Administrative Litigation Act provides that "a revocation lawsuit may be instituted without going through an administrative appeal against the disposition" and the proviso provides that "the same shall not apply to cases where there is a provision that a revocation lawsuit cannot be instituted without going through an administrative appeal against the disposition." Meanwhile, Article 56 (2) and (3) of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same shall apply) provides that "an administrative litigation against an illegal disposition under the Framework Act on National Taxes or any other tax-related Act shall be filed within 90 days from the date on which a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon is notified."

section 61(1) and section 68(1) of the same Act shall apply to a request for review or adjudgment for

Any person who has become aware of an objection (when a disposition notice is received, the date of its receipt) shall file such objection within 90 days;

Therefore, an appeal seeking revocation of a disposition under the Framework Act on National Taxes or tax-related Acts shall be filed, subject to a request for examination or a request for adjudication, and if the request for examination or a request for adjudication, which is a procedure of the previous trial, is unlawful beyond the period, the appeal

As such, it is unlawful (see, e.g., Supreme Court Decision 2013Du24297, Apr. 30, 2014).

However, on June 14, 2017, the Plaintiff became aware of the details of 'national default and loss due to the instant Disposition No. 1.

(A) The first disposition of this case is known, and the first disposition of this case is prior to that of this case.

As seen above, the fact that the Plaintiff filed an appeal with the Tax Tribunal on February 2, 2018, and the tax trial.

The printing Board rejected a petition for adjudication on the ground that it is unlawful after the Plaintiff’s request period expires.

As can be recognized, the Tax Tribunal's petition for adjudication is known to the plaintiff of the first disposition of this case.

Since it is evident that the first disposition was filed after the lapse of 90 days, the revocation of the first disposition of this case shall be sought.

The part of the lawsuit of this case is unlawful, since it was filed without due process of the preceding trial.

Therefore, the defendant's main defense pointing this out is justified.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.