Where a person liable to pay capital gains tax submits a return of tax base after the due date pursuant to Article 45-3 (1) of the former Framework Act on National Taxes, the statutory due date for such tax amount (=the

Article 35(1)3(a) and (b), Article 45-3(1) and (3) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same) and the legislative purport of Article 114(1) of the former Income Tax Act (amended by Act No. 8144, Dec. 30, 2006); in full view of the contents and legislative intent of Article 35(1)3(a) and (b), Article 45-3(1) and (3) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same), even if a person liable to pay capital gains tax submits a return of tax base and the amount of tax after the due date of tax return

Articles 35(1)3(a) and (b), 45-3(1) and (3) of the former Framework Act on National Taxes (Amended by Act No. 9911, Jan. 1, 2010); Article 114(1) of the former Income Tax Act (Amended by Act No. 8144, Dec. 30, 2006);

KFOBS specialized in securitization

Korea

Intervenor of an independent party

Seoul High Court Decision 2010Na43353, 43360 decided October 6, 2010

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The proviso of Article 35(1)3 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same) provides that "the statutory due date for determining the priorities between national tax claims and secured claims; in the case of national taxes for which the obligation to pay taxes is finalized by filing a return of tax base and amount of taxes, the date for filing the return; and in the case of national taxes for which the Government determines the tax base and amount of taxes, the date for sending the notice of tax payment; and in the case of (b) Article 45-3 of the former Framework Act on National Taxes (amended by Act No. 814, Dec. 30, 2006; hereinafter the same) provides that "a person who fails to file a return of tax base within the statutory due date for filing a return of tax base and amount of taxes may file a return of tax after the due date before the head of the competent tax office determines the tax base and amount of national tax after the due date for filing the return of tax base and amount."

In full view of the contents and legislative intent of the above provisions, even if a taxpayer of capital gains tax submits a return of tax base after the due date of tax return pursuant to Article 45-3(1) of the former Framework Act on National Taxes, the tax liability shall be determined only when the head of the competent tax office determines the tax base and the amount of tax. Therefore, it is reasonable to interpret that the “legal due date”

According to the reasoning of the judgment of the court below, the non-party transferred 418 square meters and 3 lots of land on May 30, 2006 to Kimpo-si (number omitted), Kimpo-si, Kimpo-si, and the non-party did not file a return on the tax base of transfer income by May 30, 2007, which was the due date for the final return of transfer income tax, with the head of the competent tax office on June 15, 2007. The chief of the competent tax office determines the transfer income tax amount of KRW 282,605,550 on February 1, 2008 and dispatched the tax notice to the non-party. Examining these facts in light of the aforementioned provisions and legal principles, the "legal date" on KRW 282,605,550 on the above transfer income tax was not on June 15, 2007, but on February 1, 2008, when the non-party submitted the tax notice to the non-party.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to "legal date" as alleged in the grounds of appeal.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)