Cho Jae-chul201 Jeon 2701 (Law No. 19, 2011)

Since the request period for a request for a trial is illegal with the lapse of the request period, it does not go through legitimate pre-trial procedures

If a request for administrative appeal, which is a prior trial procedure of an appeal seeking the revocation of an administrative disposition, is unlawful due to the lapse of the period, the administrative litigation also does not meet the requirements of a prior judgment and is illegal.

Article 56 of the Framework Act on National Taxes

2011Guhap2489 Revocation of Disposition of Imposing capital gains tax, etc.

CivilAA

Head of Cheongju Tax Office

March 8, 2012

April 12, 2012

1. The instant lawsuit shall be dismissed.

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

The Defendant’s disposition of imposition of KRW 00,000,000 on February 9, 2010 against the Plaintiff was revoked.

1. Details of the disposition;

A. On April 1, 2003, the Plaintiff acquired 382 m2 m2 and 000-0 m2,092 m2 and m2092 m2,000 m2 (after that, each of the above land was combined with 386 m2,474 m2,00 m2,00 m2,092 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 as to the instant land.

B. On February 9, 2010, the Defendant considered the Plaintiff’s transfer value of the instant land as KRW 000,000,000, and the acquisition value as KRW 000,000,000, and imposed KRW 000,000 on the Plaintiff for the transfer income tax belonging to the year 2005 (hereinafter “instant disposition”), and the Plaintiff received the notice of tax payment on February 16, 2010.

C. On July 27, 2011, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal rendered a decision to dismiss the said appeal on the grounds that the period for request on September 19, 201 has expired.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 5, Gap evidence 6, Eul evidence 1, Eul evidence 2, the purport of the whole pleadings

2. Summary of the cause of the claim;

The Plaintiff purchased KRW 00,00,000 for the instant land and KRW 4,124 square meters for a total of KRW 0,000,000,00 for the instant land jointly with MadD and EE, and subsequently disbursed KRW 000,00,000 under the pretext of civil engineering construction costs, etc., so no capital gains did not accrue. Nevertheless, the Defendant issued the instant disposition on the premise that Madddddd’s purchase price was reduced to KRW 00,00,000 at the time of completing the registration of ownership transfer for the instant land, based on the fact that Mad’s purchase price was reduced to KRW 00,00,000 at the time of completing the registration of ownership transfer in the future of the Plaintiff, based

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination on this safety defense

A. The defendant's main defense

The defendant asserts that the lawsuit of this case is unlawful, as it was filed without going through lawful pre-trial proceedings.

B. Determination

1) In full view of the proviso of Article 18(1) of the Administrative Litigation Act, Articles 55(1), 56(2), 61(1), and 68(1) of the Framework Act on National Taxes, in the event an administrative litigation is instituted against a disposition imposing national taxes, the procedure for prior trial, such as a request for examination or adjudgment, as prescribed by the Framework Act on National Taxes, shall be completed; and such request for examination or adjudgment shall be filed within 90 days from the date (if a notice of disposition is received, the date on which the notice of disposition is received) on which the relevant disposition is known. In addition, in the event that the request for administrative appeal, which is the procedure for prior trial of an appeal seeking the revocation of an administrative disposition, is illegal due to the lapse of the period, the administrative litigation is also unlawful (see, e.g., Supreme Court Decision 90Nu8091

2) As to the instant case, as seen earlier, it is apparent that the Plaintiff filed a request for a trial on July 27, 201, which was 90 days after receiving the notice of the instant disposition on February 16, 2010. As such, the Plaintiff’s request for a trial was filed with the intent to set the deadline for request, and thus, it cannot be deemed that the instant lawsuit was filed with the lawful procedure for a prior trial.

3) Accordingly, the Defendant’s main defense is reasonable.

5. Conclusion

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